INTERNATIONAL LAW ASSOCIATION
LONDON CONFERENCE (2000)
COMMITTEE ON FEMINISM AND INTERNATIONAL LAW
Members of the Committee:
Professor Christine Chinkin (UK): Chair
Professor Karen C Knop (Canada): Rapporteur
Professor Junko Akiba-Torii (Japan)
Mr Andrew C Byrnes (Hong Kong)
Professor Hilary Charlesworth (Australia)
Alternate: Ms Anne Gallagher
Ms Mai Chen (New Zealand)
Dr Alpha Connelly (Ireland)
Alternate: Dr Patricia Conlan
Professor M Kirilova Eriksson (Sweden)
Mrs Alda Gant (Brazil)
Professor Savitri W E Goonesekere
(HQ/Sri Lanka)
Dr Anja-Riitta Ketokoski (Finland)
Ms Annette Lansink Kirk-Cohen (South
Africa)
Mme Ludmila V Korbut (Russia)
Professor Virginia Leary (USA)
Professor P Loenen (Netherlands)
Justice Sujata V Manohar (India)
Dr Karin Oellers-Frahm (Germany)
Ms Catherine Redgwell (UK)
Atty Zenaida P Reyes (Philippines)
Ms Jenny Huei-Yi Shyu (China (Taiwan))
Alternate: Ms Chih-yu Wu
Dr Lilly Sucharipa (Austria)
Professor Giuseppe Vedovato (Italy)
Ms Tania Wasserstein (Brazil)
Final Report
on Women’s Equality and Nationality in International Law
1) Introduction
1.1) Activities of the Committee
This report is the final of the Committee’s three reports on women’s equality in the context of nationality under international law. The Committee’s work
on the topic began at the 66th ILA Conference in Buenos Aires with the consideration of a report prepared by Professor Christine Chinkin, then Rapporteur
of the Committee, and Mr Urfan Khaliq (Faculty of Law, University of
Southampton) entitled “Preliminary Study and Comparative Analysis of the
Immigration and Nationality Laws of Different States and their Impact Upon
Women” (Preliminary Study). The plenary meeting of the Conference took note
of this Preliminary Study and requested the Committee to continue its work.
At the 68th ILA Conference in Taipei, the Committee considered the further
Preliminary Report “Women’s Equality and Nationality in International Law”
(Preliminary Report). The Preliminary Report built on the Preliminary Study,
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but shifted the field of the Committee’s work from comparative to international law and narrowed its focus to nationality. The Preliminary Report was considered by the plenary meeting of the 68th Conference, which invited the
Committee to continue its work, taking into account the comments made at the
68th Conference.
Among the comments made in the Committee’s working session at the 68th
Conference was the suggestion that the Preliminary Report be widely circulated in order both that it might serve as a resource for international organizations,
nongovernmental organizations (NGOs), women’s groups and others seeking to
advance women’s equality in nationality law, and that it might attract useful
feedback from such hands-on users. This has proved to be invaluable advice. In
accordance with the specific suggestion of Professor Andrew Byrnes,1
Professor Christine Chinkin, the Chair of the Committee, sent a copy of the
Preliminary Report to the United Nations Human Rights Committee and the
Committee on the Elimination of Discrimination Against Women (CEDAW).
The Preliminary Report was publicized in the American Society of International
Law Women and International Law (WILIG) Newsletter and is listed in
Women’s Human Rights Resources, a web-based bibliography on women’s
human rights.2 It is hoped that inclusion in this website, in particular, will help
to bring the Committee’s work to the attention of those who might not be familiar with the International Law Association or think to consult its publications.
The Preliminary Report was made available to some of the advocates involved
in litigation in South Asia around women’s equality in nationality law through
Interights, a London-based international NGO which monitors and assists the
domestic litigation of human rights issues.
In October 1999, Professor Chinkin delivered a key-note address based on
the Preliminary Report, entitled “Nationality in International and Regional
Human Rights Law,” at a plenary session of a Judicial Colloquium organized by
the United Nations Division for the Advancement of Women held in Vienna and
attended by nearly 100 judges from around the world. Professor Karen Knop,
the Rapporteur of the Committee, drew on the report in her paper “Relational
Nationality: On Gender and Nationality in International Law,” prepared for the
conference “Citizenship: Comparisons and Perspectives,” co-sponsored by The
International Migration Policy Program, Carnegie Endowment for International
Peace and the Fundação Luso-Americana para o Desenvolvimento, held in
Lisbon in June 1999 (forthcoming in collection from the Carnegie Endowment
for International Peace). At the request of the UN Division for the Advancement
of Women, Professor Chinkin will author a version of the Final Report aimed at
a more general audience, which will be published by the United Nations in its
“Women 2000” series.
An informal meeting of the Committee was held in Washington, D.C. in
1
2
International Law Association, 68th Conference Report (1998) at 320.
http://www.law-lib.utoronto.ca/Diana/nation/documents.htm
COMMITTEE ON FEMINISM AND INTERNATIONAL LAW
3
April 1999. In addition to the Chair and Rapporteur of the Committee, Professor
Hilary Charlesworth, Professor Virginia Leary, Ms Jenny Huei-yi Shyu and Dr.
Lilly Sucharipa were in attendance. Other Committee members sent regrets.
Professor Chinkin had occasion to speak separately with Professor Savitri
Goonesekere, former Chair of the Committee and currently a member of
CEDAW, about the direction of the Final Report. Professor David Berry made
available to the Committee his paper “International Law and the Violation of
Women’s Rights to Nationality: A Caribbean Perspective,” and Dr. Maria
Laeticia Loenen forwarded comments on the Preliminary Report by the Dutch
Working Group on Feminism and International Law. Other Committee members brought various national developments to the Committee’s attention.
Since the 68th Conference in 1998, the Committee’s work on equality and
nationality has also benefitted from the assistance of a number of outside institutions, organizations and individuals. Through the International Human Rights
Programme at the University of Toronto Faculty of Law, the Committee was
able to establish two student internships related to its work. Ms Alison
Symington (LL.B. student, University of Toronto) spent the summer of 1999 as
an intern with Ms Sara Hossein of Interights, London; and Ms Sandra Raponi
(LL.B. student, University of Toronto) was a summer intern under the supervision of Ms Carol Batchelor (ILA Headquarters member) at the United Nations
High Commission for Refugees (UNHCR) in Geneva. Professor Knop conveyed in writing the Committee’s gratitude to Professor Rebecca Cook (Faculty
of Law, University of Toronto) and Ms Valerie Oosterveld (then Director of the
International Human Rights Programme at the Faculty of Law, University of
Toronto) for making these internships possible. The Committee is grateful to the
two host organizations and especially to Ms Hossain and Ms Batchelor for their
respective supervision of the interns. Ms Hossain and Ms Symington have been
of ongoing assistance to the Committee in keeping it apprised of domestic
developments in South Asian countries and in providing the Committee with
documentation in this regard. Ms Raponi contributed several regional studies of
women and nationality law based on her research at UNHCR. The Committee
also acknowledges with thanks comments on the Preliminary Report by Carol
Batchelor, Rebecca Cook, Zdenka Machnyikova and Johanna Myyra.3
3
Due to the Committee’s focus on women’s equality and nationality in international law, the
Final Report uses domestic laws and cases only as examples. While the Final Report therefore does
not make reference to the full wealth of information received by the Committee on specific countries and regions, its formulation of the issues, priorities and recommendations attempts to reflect
the entire range of information at its disposal. Readers who are having difficulty locating any of the
sources mentioned in the Final Report are welcome to contact the Rapporteur by mail at Faculty of
Law, University of Toronto, 84 Queen’s Park Crescent, Toronto, Ontario, Canada M5S 2C5; facsimile (416-978-7899); or electronic mail (k.knop@utoronto.ca).
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1.2) Final Report of the Committee
The Final Report updates and revises the Preliminary Report to reflect the
assistance and advice received by the Committee. The most significant revision
is the addition of a conclusion which proposes a set of general recommendations for discussion at the 69th ILA Conference in London and identifies related subjects in international law deserving of separate study.
The primary goals of the Preliminary Report were to develop a framework
for analyzing the various issues of women’s equality in nationality law and to
use this framework to evaluate the relevant international legal regimes. With
respect to the first of these goals, the Preliminary Report introduced the idea of
successive “generations” of equality issues, where reforms to nationality law
eliminated one set of equality issues only to leave or give rise to another. This
idea of generations offered a clearer picture of the progress, past and present,
toward women’s equality in nationality law. The goal of examining the full
range of international legal regimes available to promote equality in matters of
nationality was intended to bridge the gap that often exists between international lawyers, who tend to emphasize concerns of statelessness and dual
nationality; and human rights lawyers, who tend to focus on women’s equality
and sometimes on the nexus between women’s and children’s rights.
The Final Report maintains the Preliminary Report’s aim of enhancing the
understanding of how international law and international human rights law may
promote women’s equality in domestic nationality law; that is, like the earlier
report, it concentrates on what is essentially the potential of one legal system to
operate upon another. By increasing the importance of nationality and decreasing its effectiveness, globalization highlights both the value and the limitations
of such an approach. It is conventionally thought that the rise of international
human rights, many of which flow from residence or simply presence within the
jurisdiction of a state, has diminished the importance of nationality as the basis
for rights.4 But the political disintegration of states and widespread economically motivated migration of individuals symptomatic of globalization have
shown the importance of nationality as a means for individuals to become full
members of the societies in which they find themselves or to obtain assistance
in returning to the societies they voluntarily or involuntarily left. Under these
conditions, the study of discrimination against women in nationality law and its
operation assumes even greater significance. Indeed, women are among the profiles of statelessness that have been identified.5
The resources of the Committee did not, however, permit it to broaden the
study to include the discriminatory effects of how nationality laws are administered. The Final Report therefore does not deal with problems of registration,
4
See S. Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia
University Press, 1996) at c.3; Y.N. Soysal, Limits of Citizenship: Migrants and Postnational
Membership in Europe (Chicago: University of Chicago Press, 1994).
5 See C.A. Batchelor, “UNHCR and Issues Related to Nationality” (1995) 14 Refugee Survey Q.
91 at 105-106.
COMMITTEE ON FEMINISM AND INTERNATIONAL LAW
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documentation and so on that may have a significant effect on women due to
globalization. In this regard, the Committee draws attention to the valuable
work being done by the UNHCR, the UN Special Rapporteur on Violence
Against Women and a number of NGOs. For example, the UN Special
Rapporteur on Violence Against Women, Radhika Coomaraswamy, has reported problems of de facto statelessness6 among Polish women who are part of the
recent wave of women trafficked from Central and Eastern Europe into Western
Europe to work in the sex trade.7 For these women, nationality is not a means
to diplomatic assistance because often their passports are taken away by the
pimp or brothel owner, and they are unable to prove their nationality.8 The UN
Secretary General has since recommended that any barriers for trafficked
women to return to their countries, with or without passports or identification
documents, be eliminated.9 Thai women who work abroad are another example
of the gendered problems of nationality in practice. According to one Thailandbased NGO, many of these women are unregistered in Thailand and have no
identity papers to document their nationality. Among the difficulties they face
on their return to Thailand is that without proof of nationality, their children
born abroad have ambiguous or no nationality.10
The Final Report is organized as follows. Part 2 provides an historical perspective on the problems of women’s equality in nationality law. Part 3 treats
the concept of nationality and the bases on which nationality may be conferred.
Part 4 develops a framework for analyzing the various issues of women’s equality in matters of nationality, in light of which Part 5 describes and assesses the
various international legal regimes available to address these issues. The
Conclusion proposes for discussion a set of general recommendations and identifies areas of international law related to the broader issue of women’s equal
membership in the state.
6
On de facto statelessness, see C.A. Batchelor, “Statelessness and the Problem of Resolving
Nationality Status” (1998) 10 Int’l J. Refugee L. 156 at 172-174.
7 United Nations Commission on Human Rights, Report of the Special Rapporteur on Violence
Against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy. Addendum: Report on
the Mission of the Special Rapporteur to Poland on the Issue of Trafficking and Forced Prostitution
of Women (24 May to 1 June 1996), UN Doc. E/CN.4/1997/47/Add.1 (1996) at paras. 6, 44-45.
8 Ibid. at paras. 23, 66, 105. See also G. Caldwell, S. Galster & N. Steinzor, Crime & Servitude:
An Exposé of the Traffic in Women for Prostitution from the Newly Independent States (Global
Survival Network, 1997), available at <http://www.globalsurvival.net/femaletrade/9711russia.html>.
Similar problems are encountered by women in the “maid trade”: the temporary legal migration of
unaccompanied women from less developed Asian states to Western Asia (the Middle East) or to
prosperous East Asian states (for example, Hong Kong and Singapore) to take positions as live-in
domestic servants. J. Fitzpatrick & K.R. Kelly, “Gendered Aspects of Migration: Law and the
Female Migrant” (1998) 22 Hastings Int’l & Comp. L. Rev. 47 at 79-80 (seizure of passports by
employers).
9 United Nations Secretary General, Report of the Secretary General: Trafficking in Women and
Girls, UN Doc. A/53/409 (1998) at para.34.
10 Development and Education Programme for Daughters and Communities, “Nationality
Problems Add to Child Exploitation in Thailand” (February - March 1997) 1:6 Connect 6.
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2)
Historical Background
With the 1991 judgment of the Botswana High Court11 and 1992 judgment of
the Court of Appeal12 in Unity Dow v. Attorney General of Botswana, issues of
nationality regained their historical prominence in the struggle for women’s equality in international and domestic law. In Unity Dow, both the lower court and the
appeal court used international standards and obligations to find that a law allowing only a father or an unmarried mother to pass Botswana citizenship to his or her
children born in Botswana13 was unconstitutional on grounds of sex discrimination.* The applicant, Unity Dow, was a citizen of Botswana married to an
American citizen. Although she was born in Botswana, the couple lived in
Botswana and their children were born and were growing up in Botswana, Unity
Dow, as a woman, was unable to pass Botswana citizenship to her children. Had
the children instead been born in Botswana to a Botswana father and a nonBotswana mother, they would have been Botswana citizens. Without citizenship,
Unity Dow’s children could remain in Botswana as legal aliens only if they formed
part of their father’s residency permit, which Botswana granted for no more than
two years at a time. Since the children would have to travel on their father’s passport, Unity Dow would not be entitled to return to Botswana with her children in
the absence of their father. While she was jointly responsible with her husband for
the education of their children, her children, as non-citizens, did not qualify for
financial assistance for university education. In arguing that the citizenship law
was unconstitutional, Unity Dow successfully invoked the right of nondiscrimination on the basis of sex contained in the Convention on the Elimination of All
Forms of Discrimination Against Women (the Women’s Convention),14 the African
Charter on Human and Peoples’ Rights,15and other international instruments.
In other countries, the outcome of cases challenging nationality laws on
11
Unity Dow v. Attorney General of Botswana, [1991] L. R. Commonwealth (Const.) 574
(Botswana H. Ct.).
12 Unity Dow v. Attorney General of Botswana, [1992] L. R. Commonwealth (Const.) 623; 103
Int’l L.R. 128 (Botswana C.A.) [citation will be to the L.R. Commonwealth (Const.)].
13 Unity Dow also challenged an identical provision of the law regarding the citizenship of children
born outside Botswana and a provision for application for naturalization by a woman married to a
Botswana man which had no counterpart for the naturalization of a man married to a Botswana woman.
The High Court did not rule on the latter provision. While the High Court did declare the former ultra
vires, the Court of Appeal deleted that part of the High Court’s declaration due to lack of locus standi.
* It is important to note that “sex”, the term used in the cases and international conventions relevant
to women’s equality and nationality, is not the same as “gender”. “Sex” refers to a biological distinction
between female and male, while “gender” is a broader term which includes socially or culturally constructed different roles for women and men. Since “sex” appears in the existing cases and conventions
and continues to be more widely used and understood than “gender,” the Committee ultimately concluded that it would be more helpful for advocacy purposes if the current report and resolution employed
the more familiar “sex.” However, the Committee draws attention to the progressive example of the
South African constitution, which refers to both “sex” and “gender”.
14 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December
1979, 1249 U.N.T.S. 13.
15 African Charter on Human and Peoples’ Rights (Banjul Charter), 27 June 1981, 21 I.L.M. 58.
COMMITTEE ON FEMINISM AND INTERNATIONAL LAW
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grounds of discrimination against women has varied over the past decade.16 In
1994, the Zimbabwe Supreme Court used the Unity Dow case, along with
International Covenant on Civil and Political Rights and European Convention
on Human Rights jurisprudence, to find that the freedom of movement guaranteed
by the Constitution of Zimbabwe entitles a female citizen of Zimbabwe married
to a foreign citizen to reside permanently with her husband in Zimbabwe.17 In a
later case, the Court expanded this ruling to the foreign husband’s right to work
in Zimbabwe.18 Although the Constitution of Zimbabwe was subsequently
amended to provide that freedom of movement does not prevent the imposition of
restrictions on the movement or residence in Zimbabwe of any person who is neither a citizen nor a permanent resident or the expulsion of any person who is not
a citizen “whether or not he is married or related to another person who is a citizen of or permanently resident in Zimbabwe,” the Court interpreted this amendment as leaving untouched the two earlier decisions.19 In contrast, Unity Dow and
the Women’s Convention and European Court of Human Rights case-law failed to
persuade the High Court Division of the Bangladesh Supreme Court that a law
preventing Bangladeshi women from passing their citizenship to children born
from marriage to a foreign husband was unconstitutional and a violation of fundamental human rights.20 Whereas the Supreme Court of Canada in 1997 ruled
that the stricter treatment under the Canadian Citizenship Act of persons seeking
Canadian citizenship who had Canadian mothers, as compared to those who had
Canadian fathers, was unconstitutional,21 the Supreme Court of the United States
in 1998 upheld a provision of the US Immigration and Nationality Act that, based
16
See e.g. S.W.E. Goonesekere, “Nationality and Women’s Human Rights: The Asia/Pacific
Experience” in A. Byrnes, J. Connors & L. Bik, eds., Advancing the Human Rights of Women:
Using International Human Rights Standards in Domestic Litigation (Papers and Statements from
the Asia/South Pacific Regional Judicial Colloquium, Hong Kong, May 20-22, 1996) (London:
Commonwealth Secretariat 1997) 86 at 94-96; Economic and Social Commission for Asia and the
Pacific, Human Rights and Legal Status of Women in the Asian and Pacific Region (New York:
United Nations, 1997) at 31-32.
17 Rattigan v. Chief Immigration Officer, Zimbabwe 1995 (2) SA 182 (ZS).
18 Salem v. Chief Immigration Officer, Zimbabwe 1995 (4) SA 280 (ZS).
The Zambian High Court has ruled that it is unconstitutional for the government to require the
consent of the father before a mother can include her children in her passport or they can obtain
their own passport. Nawakwi v. Attorney General of Zambia, [1993] 3 L.R. Commonwealth 231
(Zambian H. Ct.).
19 Kohlhaas v. Chief Immigration Officer, Zimbabwe 1998 (3) SA 1142, 1998 (6) BCLR 757 (ZS).
On this line of cases, see also the South African Migration Project at
<http://www.queensu.ca/samp/policy-dev/legal.htm>.
20 Malkani v. Secretary of the Ministry of Home Affairs of Bangladesh (1 September 1997) Writ
Petition no.3192 of 1992 (Bangladesh Supreme Court, High Court Division, Dhaka) [uncertified
copy on file with the Rapporteur].
A recent Pakistani case upheld the provisions of the Pakistani Citizenship Act that entitle a foreign
woman married to a Pakistani man to the citizenship of Pakistan, but do not grant citizenship to a
foreign man married to a Pakistani woman. Sharifan v. Federation of Pakistan (1998) 50 All
Pakistan Legal Decisions 59 (Lahore).
21 Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.
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on stereotypes about the different parenting roles of men and women, makes it
harder for American fathers than American mothers to pass citizenship to their
children born abroad.22
The uncertain progress toward equal rights for women with respect to nationality is confirmed by states’ positions on article 9 of the Women’s Convention.
A significant number of states have made reservations to article 9, which gives
women equal rights with men to acquire, change or retain their nationality and
equal rights with respect to the nationality of their children. Although Jamaica,
Liechtenstein, Republic of Korea and Thailand have withdrawn their reservations since 1990,23 eight states that ratified or acceded to the Women’s
Convention during the same period entered reservations to article 9.24 Algeria,
Bahamas,25 Cyprus, Egypt, Fiji, France, Iraq, Jordan, Kuwait, Lebanon,
Malaysia, Morocco, Singapore (without explicit reference to article 9), Tunisia,
Turkey and the United Kingdom, also on behalf of its dependent territories, currently maintain reservations or interpretive declarations with respect to all or
part of article 9. Moreover, this list includes neither those states party to the
Women’s Convention that have made other reservations which potentially affect
the nationality rights of women26 nor those with discriminatory nationality laws
that have not reserved.27 Nor, of course, does it include states that are not party
to the Women’s Convention. A recent NGO survey gives Kenya, Monaco and
Venezuela as examples of states with discriminatory nationality laws,28 none of
which is identifiable as such through reservations to the Women’s Convention.
Cases such as Unity Dow represent the most recent efforts to achieve full
equality for women in matters of nationality, but discrimination against women
in the laws governing nationality and citizenship has been an issue internation22
Miller v. Albright, 118 S. CT. 1428 (1998). For commentary, see C.T.L. Pillard & T.A.
Aleinikoff, “Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision Making
in Miller v. Albright” [1998] Supreme Court Review 1; R. Natarajan, “Amerasians and GenderBased Equal Protection Under U.S. Citizenship Law” (1998) 30 Colum. Hum. Rts. L. Rev. 123.
But see United States v. Ahumada-Aguilar, 189 F 3d 1121 (9th Cir. 1999) (ruling this statutory distinction unconstitutional by reading the Supreme Court’s decision as based on nonjusticiability and
a majority of the Justices as finding that the provision relied impermissibly on gender stereotypes).
23 In 1996, the United Kingdom withdrew part of its reservation to article 9.
24 Algeria, Bahamas, Fiji, Jordan, Kuwait, Lebanon, Malaysia, Morocco.
25 See D. Berry, “International Law and the Violation of Women’s Rights to Nationality: A
Caribbean Perspective” (2000) [unpublished] (on file with the Rapporteur).
26 Pakistan might be an example.
27 Malawi and Nepal might be examples. With respect to Malawi, see S. Muthali, “We are Still
2nd Class? Citizenship Laws of Malawi” (March 1999) 11:1 Women and Law in Southern Africa
Research Trust Newsletter 4. The Nepal Supreme Court in 1994 struck down provisions of the citizenship law that discriminated against foreign spouses of Nepalese women. Goonesekere, supra
note 16 at 95. However, the Forum for Women, Law and Development (Nepal) is working to
change other discriminatory aspects of Nepalese nationality law. Personal communication of the
Forum for Women, Law and Development (Nepal) with the Rapporteur (20 April 2000).
28 Equality Now, “Words and Deeds. Holding Governments Accountable in the Beijing + 5
Review Process.” (1999) 16:1 Women’s Action at 10-14, available at
<http://www.equalitynow.org/action_eng_16_1.html>.
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ally since the beginning of the twentieth century.29 In fact, the International Law
Association at its 31st Conference in 1922 unanimously carried the resolution “it
would be desirable to fix uniformly by treaty the nationality of married women,
reserving to a married woman, so far as possible, the right to choose her own
nationality.”30 In a paper presented to the 32nd Conference the following year,
Ernest Schuster limited the ILA’s interest in the question of married women’s
nationality to the ILA’s two objectives of promoting “uniformity of legislation in
matters affecting international intercourse” and determining “means for the
avoidance of conflicts between the laws of different countries.”31 Dr. Schuster
argued, however, that these objectives supported a married woman’s right to
choose her own nationality, independent of her husband’s nationality, because
this was the trend rapidly emerging in domestic legislation and encouragement
of the trend would serve to promote uniformity and minimize conflicts between
the nationality laws of different states.32 Moreover, he personally endorsed this
view on the grounds that no individual should be required to change her nationality without her consent and that an individual should truly bear allegiance to
the state of which she is a national.33 At the same Conference, the British feminist and pacifist Chrystal Macmillan34 lay before the Conference a draft convention on the nationality of women proposed by the International Women’s
Suffrage Alliance.35 The consideration of this draft convention, based on the general principle that married women should have the same right as men to keep or
change their nationality, led to the ILA’s adoption at its 33rd Conference in 1924
of a model domestic statute and set of provisions for inclusion in international
treaties. Seeking the solution most likely to be consistent with “the happiness of
family life, remembering that a wife joins a new family with her eyes open,” the
Committee responsible concluded that “the old rule, which has come down from
early Christian times,36 should be the dominant rule still; that is to say, that the
wife should, as a rule, follow the nationality of her husband.”37 In terms of
women’s interests, the most that can be said for the ILA model statute and treaty
29
See C. Macmillan, speaking at the 32nd International Law Association Conference.
International Law Association, 32nd Conference Report (1923) at 40-41.
30 International Law Association, 31st Conference Report (1922) at 257. Quoted in E.J. Schuster,
“The Effect of Marriage on Nationality” in 32nd Conference Report, supra note 29 at 9.
31 Schuster, supra note 30 at 9.
32 Ibid. at 10.
33 Ibid. at 23-24.
34 On Macmillan, see generally A. Wiltsher, Most Dangerous Women: Feminist Peace
Campaigners of the Great War (London: Pandora, 1985).
35 32nd Conference Report, supra note 29 at 45-47.
36 There is some debate as to whether this nationality rule was long implicit in the patriarchal
ethos of the common and civil law or a more recent addition. See 32nd Conference Report, supra
note 29 at 9-38.
37 International Law Association, 33rd Conference Report (1924) at 24. For Macmillan’s response, see
ibid. at 40. The Institut de Droit international also tackled the issue of married women’s nationality. See
A.N. Makarov, “La Nationalité de la Femme Mariée” (1937-II) 60 Rec. des Cours 115 at 141-145.
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provisions is that they addressed the problem of women’s statelessness resulting
from conflicts among the nationality laws of different states.
Women and others who supported the principle of independent nationality
for married women were also active at the 1930 Hague Codification
Conference,38 which was similarly reluctant to go much beyond problems of
women’s statelessness. In contrast, the work of the Inter-American Commission
of Women39 led to the 1933 Montevideo Convention on the Nationality of
Women, which provided that there should be no distinction based on sex as
regards nationality.40 The disillusionment of international women’s organizations with the Convention on the Conflict of Nationality Laws41 which emerged
from the 1930 Hague Codification Conference resulted in the creation of the
Women’s Consultative Committee on Nationality within the League of
Nations.42 There would be no universal convention, however, until the United
Nations Commission on the Status of Women produced43 the Convention on the
Nationality of Married Women44 in 1957.
Since the ILA’s consideration of women’s equality and nationality in the
early 1920s, the issues for women have largely shifted from the first generation
equality issue of a married woman’s right to a nationality independent of her
husband to second generation equality issues, such as those in Unity Dow, associated with the possibility that spouses have different nationalities. On the horizon may be yet a third generation of equality issues.
3) Nationality
3.1) The Concept of Nationality
“In the past, nationality was viewed largely as a privilege, of a somewhat rigid and almost mystical character, conferred by the State,” Hersch
Lauterpacht wrote, “It is now increasingly regarded as an instrument for securing the rights of the individual in the national and international spheres.”45 As
the “right to have rights”,46 nationality is amongst the most important rights a
state can assign to individuals.
38
39
40
Makarov, supra note 37 at 149-150.
See J.B. Scott, “The Seventh International Conference of American States” (1934) 28 AJIL 219.
Montevideo Convention on the Nationality of Married Women, 26 Dec. 1933, (1934) 28 AJIL
Supp. 62, art.1.
41 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April
1930, 179 L.N.T.S. 89.
42 C.A Miller, Lobbying the League: Women’s International Organizations and the League of
Nations (Ph.D. Thesis, University of Oxford, 1992) at 193-209.
43 United Nations, Convention on the Nationality of Married Women: Historical Background and
Commentary (1962), UN. Doc. E/CN.6/389, UN Sales No. 62.IV.3 at c.2.
44 Convention on the Nationality of Married Woman, 20 February 1957, 309 U.N.T.S. 65.
45 H. Lauterpacht, “Foreward to the First Edition” in P. Weis, Nationality and Statelessness in
International Law, 2nd ed. (Alphen aan den Rijn: Sijthoff & Noordhoff, 1979) at xi.
46 Perez v. Brownell (1958), 356 U.S. 44 at 64 (Warren, C.J., dissenting) (“Citizenship is man’s
basic right for it is nothing less than the right to have rights.”).
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In international law, nationality secures rights for the individual by linking her
to a state. Traditionally the subjects of international law are states; individuals
are not subjects of international law. By forging a link between individual and
state, nationality makes one state’s interference with the national of another a
violation of the other state’s sovereignty. Nationality thereby provides the state
of nationality with the standing to make a diplomatic claim with respect to the
harms constituting violations of international law caused to that individual.47
This right of the state to grant its nationals protection in relation to other
states is a key function of nationality in international law. It may be that in the
long term, this function will decrease in importance as the individual herself is
increasingly recognized as a subject of international law.48 In the short term,
however, the traditional protective function of nationality has assumed even
greater importance as the large-scale movement of workers, refugees and others seen in the late twentieth century means that significant numbers of people
live outside their state of nationality.49
The other key function of nationality in international law is the duty of the
state to admit its nationals and allow them to reside within its territory.50 While
this is primarily a question for domestic law, it becomes an international legal
obligation insofar as relations between states are affected. Under international
law, states have the sovereign discretion to admit aliens and, subject to certain
safeguards, to expel them. But, by not admitting its national expelled from
another state, the state of nationality infringes the expelling state’s sovereign
right to choose which aliens reside in its territory. A state therefore has the duty,
as between states, to admit its nationals into its territory. This duty of admission
and non-expulsion of nationals is recognized in a number of international
human rights instruments.51
Each state determines under its own law who are its nationals. In the
Nottebohm case, the International Court of Justice stated: “...international law
leaves it to each state to lay down the rules governing the granting of its own
47
For a recent example, see Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic
of the Congo), Application of 28 December 1998, International Court of Justice, available at
<http://www.lawschool.cornell.edu/library/cijwww/icjwww/idocket/igc/igc_orders/igc_iapplication_19981228.pdf>.
48 See R. Donner, The Regulation of Nationality in International Law, 2nd ed. (Irvington-onHudson, N.Y.: Transnational Publishers, 1994) at 13-15.
49 With respect to women in the Asia Pacific region, see Goonesekere, supra note 16 at 86.
In such contexts as the European Union, nationality also assumes importance because EU
nationals enjoy a range of benefits in EU states that other non-nationals do not.
50 See generally Weis, supra note 45 at 45-61.
51 Universal Declaration of Human Rights, GA Res. 217A(III), UN GAOR, 3rd Sess., Pt.I, Resns
71 (1948), art.13(2); International Covenant on Civil and Political Rights, 16 December 1966, 999
U.N.T.S. 171, art. 12(4); International Convention on the Elimination of All Forms of Racial
Discrimination, 7 March 1966, 660 U.N.T.S. 195, art.5(d)(ii); African Charter on Human and
Peoples’ Rights, supra note 15 at art.12(2); American Convention On Human Rights, 22 November
1969, 1144 U.N.T.S. 123, art.22(5); Protocol No.4 to the Convention for the Protection of Human
Rights and Fundamental Freedoms, 16 September 1963, E.T.S. No.46, art.3.
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nationality.” 52 A state’s discretion is limited by customary international law and
jus cogens, and is also limited where the state has entered into human rights
treaties, whereby it binds itself under international law to provide particular
safeguards under its domestic law.53
In addition, a state’s grant of nationality may be challenged when it attempts
to raise a diplomatic claim against another state. The Nottebohm case54 stressed
that the absence of a genuine link between a state and its claimed nationals may
lead to its having no standing to make a claim with respect to the harms caused
to those individuals.55
Closely connected to the legal concept of nationality is citizenship. The term
“nationality” is often used interchangeably with the term “citizenship”. In international law, as well as in many domestic jurisdictions,56 however, nationality
and citizenship technically relate to different aspects of membership in a state.
Nationality corresponds to membership in a state vis-à-vis other states; that is,
it stresses the international protections afforded by membership. Citizenship is
associated with full membership within the state. It follows from the distinction
between nationality and citizenship that, as Paul Weis puts it, “every citizen is
a national, but not every national is necessarily a citizen...”57 While the laws of
a state may distinguish between different classes of nationals, these distinctions
are not relevant in international law.58
52
Nottebohm Case (Liechtenstein v. Guatemala), [1955] ICJ Rep. 4 at 23. See also Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws, supra note 41 at
art.1; European Convention on Nationality, 6 November 1997, E.T.S. No.166, art. 3(1).
53 Is has been argued, for example, that the deprivation by the South African apartheid government of the nationality of Africans in the so-called independent Bantustans (Transkei,
Bophuthatswana, Venda and Ciskei) during the apartheid era violated the prohibition on denationalization on the grounds of race. See J. Dugard, International Law - A South African Perspective,
2d ed. (JUTA, 2000) at 451.
54 Nottebohm, supra note 52.
55 The concept of “effective nationality” has been stated in a number of decisions and can be seen
to be accepted as international law. Some of the most important decisions where the concept has
been discussed include: Nottebohm, supra note 52; Canevaro Case (Italy v Peru) (1912), 11
R.I.A.A. 397, 6 AJIL 746; Salem Case (Egypt v U.S.) (1932), 2 R.I.A.A. 1161; Iran v. United
States, Case No. A/18 (1984), 5 Iran-U.S. Claims Tribunal Reports 251.
56 Where international law and most Western European states use the term “nationality,” most
Eastern European states use the term “citizenship.” Council of Europe, European Convention on
Nationality and Explanatory Report, ISBN 92-871-3470-7 (Strasbourg: Council of Europe
Publishing, 1997) at 3.
For some, nationality may also mean membership in a non-state group. Indigenous participants
in the ongoing drafting of a United Nations Declaration on the Rights of Indigenous Peoples have
interpreted the right of every indigenous individual to a nationality, contained in article 5 of the
draft Declaration, as the nationality of the indigenous nation, whereas state participants have interpreted it as the nationality of the encompassing state. “Working Group on the Draft Declaration of
the Rights of Indigenous Peoples, 3rd Session (Geneva, 27 October - 7 November 1997)” (1997)
No. 39-40 Hum. Rts. Monitor 23.
57 Weis, supra note 45 at 5-6.
58 Ibid. at 3-7.
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Within the state, the citizenship rights that flow from nationality are a passport to a series of other rights and duties which may range from the right to vote
to the requirement of military service. In a General Recommendation interpreting the Women’s Convention, CEDAW stated: “Nationality is critical to full participation in society...Without status as nationals or citizens, women are
deprived of the right to vote or to stand for public office and may be denied
access to public benefits and a choice of residence.”59
While nationals within the state potentially enjoy full citizenship rights, nonnationals are regarded as aliens. The treatment of aliens depends, among other
things, on whether the state in question accepts that there is an “international
minimum standard” of treatment which must be accorded to all aliens by the
state, irrespective of how it treats its own nationals, or takes the position that
aliens may only insist on those rights which the state grants to its own nationals.60
In this connection, it should be stressed that a woman’s equal right to membership in a community within the state, such as an indigenous people or ethnic
minority, raises different issues from a woman’s equal right to the membership
in the state that nationality in the traditional international legal sense represents.
This is borne out by the divided reaction of indigenous women in Canada to the
United Nations Human Rights Committee’s views in the Lovelace case.61
Sandra Lovelace was born and registered as a “Maliseet Indian”, which gave
her the rights and privileges of Indian status under Canada’s Indian Act. In
accordance with Section 12(1)(b) of the Act, she automatically lost her Indian
status, and thereby her right to live on the reserve, by marrying a non-Indian.
Under the Act, a male Indian who married a non-Indian would not have lost his
Indian status. Lovelace claimed that the Indian Act thereby discriminated on the
grounds of sex and violated the rights of equality and nondiscrimination, rights
of minorities and several other rights guaranteed by the International Covenant
on Civil and Political Rights. Since the Covenant had not come into force in
Canada at the time of her marriage, the Committee found that the Covenant only
applied to the continuing effects of her loss of status and not to the event of her
marriage, which had caused that loss. It concluded that the ongoing denial of
her Indian status, and therefore her right to return to the reserve following the
break-up of her marriage, violated her rights as a person belonging to a minority as read in the context of her right to equality and nondiscrimination. For
Sandra Lovelace, and the other women from her reserve who were in the forefront of the campaign to change the discriminatory rules on status in the Indian
59
General Recommendation 21 on Equality in Marriage and Family Relations, in Report of the
Committee on the Elimination of Discrimination Against Women (Thirteenth Session), UN GAOR,
49th Sess., Supp. No.38, UN Doc. A/49/38 (1994) at 2.
60 See Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in
Which They Live, GA Res.144(XL), UN GAOR, 40th Sess., Supp. 53 (1985) at 253 (adopted by
consensus).
61 Lovelace v. Canada, UN Human Rights Committee, Selected Decisions, vol.2 (1981) 28.
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Act,62 the struggle for equality between women and men within the terms of the
Act took priority over the larger movement to replace the Act with indigenous
self-government.63 However, there are also indigenous women who see
Lovelace as little more than the amendment of a colonial statute to incorporate
a Western idea of gender equality. For them, the issue of gender equality cannot
be isolated from the political environment for indigenous beliefs and existence
in Canada. Mary Ellen Turpel (Aki-Kwe), for instance, has asked rhetorically:
“Before imposing upon us the logic of gender equality (with White men), what
about ensuring for our cultures and political systems equal legitimacy with the
Anglo-Canadian cultural perspective which dominates the Canadian State?”64
As the larger context of the Lovelace case illustrates, the issue of women’s equal
right to membership in a community within the state involves the additional
issues of that community’s right to determine its membership65 and the equal
participation of women in this determination.66
3.2) Bases for Nationality
Nationality can be obtained by a number of means. The two principles on
which nationality is awarded at birth are jus sanguinis and jus soli. Where the
state in question follows the principle of jus sanguinis, an individual’s nationality is determined by descent from a national. Historically, this principle took
the patrilineal form of tracing the individual’s nationality only through the
father’s line.67 Where the principle is instead jus soli, the individual is a nation62
For the story of this group of women, told by them in a series of conversations stretching from
memories of growing up on the reserve to their political getting of wisdom, see J. Silman, ed.,
Enough is Enough: Aboriginal Women Speak Out (Toronto: The Women’s Press, 1987).
63 Ibid. at 244, 247. This is not to say, of course, that they do not support self-government. See
e.g. ibid. at 224.
64 M.E. Turpel (Aki-Kwe), “Patriarchy and Paternalism: The Legacy of the Canadian State for
First Nations Women” (1993) 6 Can. J. Women & L. 174, 183. See also R. Johnson, W. Stevenson
& D. Greschner, “Peekiskwetan” (1993) 6 Can. J. Women & L. 153, 159, 170-171; “The Roles and
Responsibilities of Aboriginal Women: Reclaiming Justice” in P. Monture-Angus, Thunder in my
Soul: A Mohawk Woman Speaks (Halifax: Fernwood Publishing, 1995) 216. See generally D.S.
Berry, “Conflicts Between Minority Women and Traditional Structures: International Law, Rights
and Culture” (1998) 7 Soc. & Legal Studies 55.
65 Developments in international law place increasing emphasis on self-identification. See e.g.
Convention (No.169) Concerning Indigenous and Tribal Peoples in Independent Countries, in
International Labour Conventions and Recommendations, 1919-1991 (Geneva, International
Labour Organisation, 1992) art. 1(2).
66 Cf. Report of the First Asian Indigenous Women’s Conference, 24-30 January 1993, Baguio,
reprinted in “Osaka Gathering of Minority and Indigenous Women” Executive Committee, Minority
and Indigenous Women in Japan and Fourth World Conference on Women (1995) 134-135:
[A] situation which concerned us is the fact that Asian indigenous women do not have any visibility in conferences of women nor of indigenous peoples. Indigenous women in general are hardly
seen nor heard of in women’s conferences. Neither do we have significant presence in indigenous
peoples’ conferences which are highly male-dominated.
67 The Israeli Law of Return is a notable exception in this regard. See A. Shachar, “Whose Republic?:
Citizenship and Membership in the Israeli Polity” (1999) 13 Georgetown Immigration L.J. 233 at 244-246.
COMMITTEE ON FEMINISM AND INTERNATIONAL LAW
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al of the state simply by being born within the state’s territory, irrespective of
the parents’ nationalities. While this principle is superficially neutral, it favours
the father’s nationality insofar as women have traditionally tended to reside in
their husband’s state. The vast majority of states have adopted an approach
which is a combination of these principles.
Other than at birth, nationality may be acquired by naturalization. It is for the
state to stipulate the requirements that must be satisfied before a non-national
can apply to be naturalized. The philosophy behind the requirements, which
generally include the passage of time and the establishment of residence within
the state, is expressed by the Inter-American Court of Human Rights in its 1984
Advisory Opinion on amendments to the naturalisation provisions of the
Constitution of Costa Rica. “In these cases,” the Inter-American Court of
Human Rights stated, “nationality no longer depends on the fortuity of birth in
a given territory or on parents having that nationality; it is based rather on a voluntary act aimed at establishing a relationship with a given political society, its
culture, its way of life and its values.”68 Traditionally, this notion of naturalization as the voluntary establishment of a relationship with the state had to be reconciled, however, with the fact that marriage to a national was a basis for automatically granting nationality to a non-national woman. One way that the two
were reconciled was through the idea that women consented to membership in
the polity not directly, but indirectly as part and parcel of their consent to marriage.69 As Anne McClintock observed: “For women, citizenship in the nation
was mediated by the marriage relation within the family.”70
Where nationality is acquired by naturalization, it is clear that the rules for
entry to a state control who will in future be eligible to be a national. The immigration law of each state lays down the requirements for admission. In many
states, nationality law is therefore entangled with, and even based upon, the law
of immigration. There is no uniformity in the principles upon which states have
based their criteria for admission. The factors which may be taken into account
include a person’s language, religion, political beliefs, place of birth, connections to the state, the closeness of family relatives who already reside there,
financial position, ethnicity, colour, existing nationality and sex. Since each
state has a large discretion in its choice of such factors, its history, economic situation, culture and political climate will determine which individuals will be
granted immigration clearance and possibly nationality in the future.71
68
Amendments to the naturalization provisions of the Constitution of Costa Rica, Advisory
Opinion of 19 January 1984, Inter-American Court of Human Rights, (1984) 5 Hum. Rts. L.J. 161
at para.35 [hereinafter Costa Rica Advisory Opinion].
69 MacKenzie v. Hare (1915), 239 U.S. 299.
70 A. McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Context (New
York: Routledge, 1995) at 358.
71 Sexual discrimination in immigration rules is beyond the scope of this report, but it is obvious that
the prospects for gender equality in nationality law are affected by immigration rules and that progress
toward gender equality in nationality law can be undermined by changes to the immigration rules.
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Individuals may be perceived as undesirable, for example, if they are considered likely to be a burden upon the resources of the state. In fact, the vast majority of states grant “primary immigration” clearance only to those who can sustain themselves and bring some benefit to the state. Women have until recently
almost always been viewed either as a burden, and therefore unworthy of citizenship on their own merits, or as the appendages of men.
4)
Equality Issues
This part divides the issues of women’s equality in nationality law into three
generations. The first generation issue is defined as the issue of a married
woman’s right to an independent nationality. The second generation of issues
involve those inequalities that come to the fore once a married woman has a
nationality independent of, and hence potentially different from, her husband’s
nationality. Although a third generation of equality issues has not yet taken
shape, this part suggests some remaining areas of concern for women.
Since women’s nationality is governed by both domestic and international
law, the issues will differ from state to state and region to region. Although independent nationality for married women is now widely accepted, there are still
states that maintain reservations or interpretive declarations to article 9(1) of the
Women’s Convention, which provides that women have equal rights with men
to acquire, change or retain their nationality and, in particular, that neither marriage to an alien nor change of nationality by the husband during marriage shall
automatically change the nationality of the wife, render her stateless or force
upon her the nationality of the husband. While the second generation of issues
is most prominent in the contemporary case-law, these successes may be compromised in ways that raise a third generation of issues.
4.1) First Generation Issue of Equality: Nationality of Married Women
Until the First World War, the nationality laws of virtually all countries made
a married woman’s nationality dependent on her husband’s nationality.72 The
first of Virginia Woolf’s three clarion phrases in her 1938 political work Three
Guineas - “as a woman, I have no country. As a woman I want no country. As
a woman my country is the whole world” - is a bitter allusion to British nationality laws of the day which deprived a woman of British nationality on her marriage to a foreigner.73 The principle of dependent nationality, also called the
principle of the unity of nationality of spouses, rested on the conviction that a
For an example, see Shachar, supra note 67 at 256-257 (pointing to the serious bureaucratic
obstacles before alien men who wish to establish permanent residency in Israel based on their marriage to Israeli women, especially Palestinian men from the West Bank or Gaza who are married to
Arab Israeli women).
72 Makarov, supra note 37 at 119.
73 V. Woolf, Three Guineas, M. Barrett, ed. (1938) (London: Penguin, 1993) 234. See also ibid. at
277, n.12.
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family should have the same nationality and on the patriarchal notion that the
husband should determine that nationality.74
On this principle, a woman who married a foreign national lost her own
nationality and acquired that of her husband simply by virtue of marriage. If her
husband’s nationality changed or was lost during the marriage, her nationality
altered accordingly. Particularly galling to women was the situation where the
woman after marriage continued to live in her own country, but without the
civil, political, economic and social rights which depended upon nationality. For
feminists of the time, this situation reproduced the second-class citizenship of
all women in society.75
A woman who was abandoned or widowed did not have the right to return to
her own country since that right is a function of nationality. If she were able to
re-enter, she would find herself without the rights attached to nationality. In
Canada, this sort of problem may still arise, for instance, in the context of certain health care benefits for women who have lost their Canadian nationality on
marriage to a non-Canadian and return to Canada later in life to be cared for by
a child, usually a daughter.76 On the principle of dependent nationality, moreover, divorce could render a woman stateless. In many cases, women became
stateless without even being aware of it.
Given that the principle of dependent nationality created problems of both
practicality and principle, it was open to reformers to address the practical problem of women’s statelessness and leave aside the problem of women’s inequality.
Indeed, the ILA at its 33rd Conference in 1924 chose to deal with the nationality
of married women as a problem of conflicts among the nationality laws of different states and not, as Chrystal Macmillan had hoped, as a problem of inequality.
In contrast, the International Women’s Suffrage Alliance draft convention introduced by Macmillan at the Conference provided not only for the prospective
application of the principle of independent nationality, but for the restoration of
women’s nationality lost through the principle of dependent nationality.77
74
See Costa Rica Advisory Opinion, supra note 68 at para.64; Historical Background, supra note
43 at 3.
75 Miller, supra note 42 at 193.
76 Barbara Jackman, Interview, 10 February 1998. A married woman’s loss of her original nationality may result from the operation of the principle of dependent nationality of married women or
from problems of statelessness or dual nationality, which, as will be seen, often compel a woman
to take her husband’s nationality alone.
77 32nd Conference Report, supra note 29 at 46. For a state that has amended its laws to include
such a proposition, see Initial Report of States Parties. Italy, UN Doc. CEDAW/C/5/Add.62 (30
November 1989) at 52.
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4.2) Second Generation Issues of Equality
4.2.1) Ability to Pass Nationality to Children
In arguing for the independent nationality of women at the 32nd ILA
Conference in 1923, Dr. Schuster could assure the Conference that no claim had
been made that “the wife, being allowed independence as regards her own
nationality, might as a result claim that the children’s nationality should also
depend on hers.”78 As the Unity Dow case indicates, this claim is precisely the
sort of equality issue that followed from the recognition of independent nationality for women.
Traditionally, the husband’s nationality determined the nationality of the
children of the marriage, as well as the nationality of the wife. As can be seen
from the Parliamentary debate in Britain, this law was for some bound up with
a stereotype of women as devoted to “the preservation and care of life” and
therefore incapable of demonstrating the love of country that would entitle them
to pass its nationality on to their children. In opposing a mother’s right to pass
her nationality on to her children, finally recognized in Britain in the 1981
Nationality Act, Conservative Member of Parliament Enoch Powell stated:
“Nationality, in the last resort, is tested by fighting. A man’s nation is the nation
for which he will fight”.79 Ayelet Shachar argues that even now, the Israeli paradigm of the citizen as soldier means that women are, to some degree, lesser citizens of Israel because although both men and women are obliged to perform
military service, women can be exempted if they are wives or mothers.80
In states where nationality is determined wholly or partly by descent from a
man of that nationality, a woman’s legal inability to convey her nationality to
her child is one of the main issues of women’s equality and nationality. In a
comment on the Malkani case, Lubna Mariam writes:
Mothers may croon Bangla ghoom pardani lullabies at their child’s cradle,
guide them through their first Bangla rhymes, enjoin them to love Sonar
Bangla; mothers may even send their sons and daughters to lay their lives for
Bangladesh, if need be; but mothers, in Bangladesh, cannot give their children
the right to call themselves Bangladeshis.81
From a practical perspective, moreover, if a mother cannot give her national80
Shachar, supra note 67 at 259-263.
Ironically, U.S. Supreme Court Justice Stevens recently relied precisely on the value of motherhood to justify provisions of the US Immigration and Nationality Act that make it easier for an
American mother to pass citizenship to a child born abroad and fathered out of wedlock by a nonAmerican than for an American father in the same position:
If the citizen is the unmarried female, she must first choose to carry the pregnancy to term and
reject the alternative of abortion - an alternative that is available by law to many, and in reality to
most, women around the world. She must then actually give birth to the child. Section 1409(c)
rewards that choice and that labor by conferring citizenship on the child.
Miller, supra note 22 at 1437.
81 L. Mariam, “Whither Equal Rights?” [on file with the Rapporteur].
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ity to her child, then a child born outside of marriage or of an unknown or stateless father will be stateless. This problem of statelessness potentially affects,
among others, single mothers82 and lesbian couples. While children of a marriage have the father’s nationality, and are therefore not stateless, the mother’s
inability to pass on her nationality to the children may nevertheless cause problems of residency, mobility and access to state benefits such as those presented
in Unity Dow. In the Malkani case, a court-appointed amicus curiae argued that
another consequence of denying Bangladeshi citizenship to the child of a
Bangladeshi mother and foreign father was the effective denial in the event of
separation or divorce of the mother’s preferential rights of custody of children of
tender years because the children would not be assured of the visas and visa
renewals necessary for them, as non-citizens, to reside with her in Bangladesh.83
Ruth Donner points to the possibility for “legal kidnapping” in the situation
where divorced parents have different nationalities and the mother has custody
of the child in her state of nationality. If the child has only the father’s nationality, then the mother’s state of nationality has no standing to intervene diplomatically where the child is concerned. Thus, if the father abuses his visitation rights
by taking the child back to his state of nationality, the mother’s state cannot exercise its right of diplomatic protection to recover the child.84
As increasing numbers of women work abroad due to the economic pressures
of globalisation85 or seek refuge abroad from civil war or other emergencies, 86
the problems caused by this unacceptable discrimination between the ability of
mothers and fathers to pass nationality to their children will only become more
acute.
4.2.2) Naturalization Procedures
Since it was traditionally assumed that a wife would live in her husband’s
state,87 some states replaced the regime of dependent nationality for married
82
Even if the children of a single mother have her nationality, there may still be nationality-related problems stemming from the role of the father as head of the family in some legal systems. See
e.g. Nawakwi, supra note 18 (A single mother successfully challenged the requirement that she
obtain the father’s consent before she could include her children in her passport or they could
obtain their own passport.).
83 Malkani, supra note 20, written submission of Dr. Kamal Hossain as amicus curiae at 2,
para.3(c) [Uncertified copy on file with the Rapporteur].
84 Donner, supra note 48 at 200. For one such narrative, see A. Djebar, “A Sentence of Love”
(Autumn 1997) 59 Granta 49 (issue on “France: The Outsider”). It should be noted that dual nationality for the child does not solve this problem (unless, perhaps, an argument can be made based on
the child’s effective nationality). Resort must instead be had to other international conventions.
85 See generally S. Sassen, “Toward a Feminist Analytics of the Global Economy” (1996) 4
Global Legal Stud. J. 7.
86 The current report does not deal with the implications of refugee status upon the nationality and
status of women.
87 See Macmillan at 33rd Conference Report, supra note 37 at 39. For an indication of U.S. statistics that support this assumption factually, see J. Fitzpatrick, “The Gender Dimension of U.S.
Immigration Policy” ((1997) 9 Yale J. L. & Feminism 23 at 24.
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women with a special procedure for a foreign wife to acquire her husband’s
nationality by naturalization or to acquire residency status88 in her husband’s
state.89 The 1957 Convention on the Nationality of Married Women, in fact,
envisages “specially privileged naturalization procedures” for foreign wives.90
In several international91 and domestic cases over the last two decades, however, these rules have been found to violate the right of nondiscrimination. It is
this discrimination against foreign husbands seeking nationality or residency
that has become the other second generation equality issue.
At the same time, it is important to bear in mind that even identical naturalization procedures for women and men may discriminate against women. In
practice, many states require, among other things, personal interviews to test a
person’s competence in the language of the state before nationality is granted.
This may be especially burdensome for women who have not had the opportunity to learn a language because they have remained within the home while the
men have gained employment and pursued outside interests, thereby affording
them greater opportunity to learn the language.92 Discussing why elderly immigrants to the United States have much lower rates of naturalization than younger
immigrants, Joan Fitzpatrick points to such obstacles to citizenship as a lack of
knowledge of U.S. civics and English, a reluctance to adjust to a new culture,
emotional problems stemming from redefined roles within the family, increased
difficulty in acquiring a second language at an advanced age, and age-related
impediments to access to language or civics classes. She notes that these obstacles may be even greater for those elderly female immigrants who are illiterate
in their first language and have little or no formal education.93
4.3) Possible Third Generation Issues of Equality
In addition to a patriarchal idea of the family, the principle of dependent
88
Although the case law has involved both naturalization and residency status, the focus here will
be on naturalization.
89 United Nations, Nationality of Married Women, UN Doc. E/CN.6/254/Rev.1, UN Sales No.
64.IV.1 (1963) at 15-18.
90 Convention on the Nationality of Married Women, supra note 44 at art. 3.
91 Discussed below in section 5.3.
92 See e.g. Council of Europe Parliamentary Assembly, Recommendation 1261 (1995), para 3:
3. The Assembly is concerned by the situation of immigrant women, a large number of whom
live on the margins of society and are confronted by more serious difficulties than those facing
immigrant men. When they are married, they are often confined to the home doing housework
and isolated from the local community, without real opportunities to learn the language of the
host country, thus further aggravating their isolation. When they are employed, they are often
doing menial jobs unconducive to greater autonomy or to their integration into the host society
available at <http://stars.coe.fr/ta.ta95/erec1261.htm>.
According to the Dutch Working Group on Feminism and International Law, the Dutch citizenship requirements regarding proficiency in Dutch and sufficient integration into Dutch society
make it generally harder for foreign women, especially those from Islamic countries who are often
more isolated, to become Dutch citizens than it is for foreign men.
93 See Fitzpatrick, supra note 87 at 41.
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nationality of married women rested on the conviction that the family should
have the same nationality. However quaint or outmoded this conviction, it
served the practical purpose of securing the unity of the family legally through
a common nationality. It is conceivable that ridding nationality law of its patriarchal foundation may have come at some cost to the unity of the family.
Where one spouse is a national of the state where the family lives and the
other is not, the foreign spouse will always lack the security, entitlements and
benefits which that state attaches to nationality. Depending on the rights extended to non-nationals by that state, the only viable option for the foreign spouse
may be to become a national by naturalization. If the two states involved do not
both permit dual nationality, however, naturalization amounts to the forced
renunciation of the spouse’s own nationality.
This scenario suggests that the achievement of equality in nationality law
may involve three related concepts: the rights of non-nationals; the right of one
spouse to acquire the nationality of the other or to the facilitation of the acquisition of that nationality; and the right to dual nationality, at least for families of
mixed nationality.
A discussion of the first of these concepts, the rights of non-nationals, is
beyond the scope of this report. As regards the second concept, current international law does not recognize the right of one spouse to acquire the nationality
of the other or to the facilitation of the acquisition of the other spouse’s nationality,94 although a number of states do facilitate that acquisition.95 The United
Nations Human Rights Committee, Inter-American Court and European Court
of Human Rights have all found discriminatory the special treatment for foreign
wives that often replaced the prior legal regime of dependent nationality for
married women. But while a state must provide such treatment to foreign wives
and foreign husbands equally if it provides it to either, the state is under no
obligation to provide special treatment in the first place. Legal challenges may
therefore not result in the extension of special treatment to foreign husbands,
but in its withdrawal altogether. In response to a case challenging British immigration rules as discriminatory under the European Convention on Human
Rights,96 the British government changed the immigration rules so that it
became as hard for foreign wives to join their husbands settled in Britain as it
already was for foreign husbands to join their wives.97
94
95
Donner, supra note 48 at 239. Cf. Costa Rica Advisory Opinion, supra note 68 at para.59.
Examples of countries that have specific provisions on marriage include Austria, Belgium,
Finland, France, Germany, Ireland, Israel, Italy, Luxembourg, Mexico, The Netherlands, Portugal,
Russia, Spain, South Africa, Sweden, the United Kingdom and the United States. P. Weil, “Access
to Citizenship” (Paper presented at the conference “Citizenship: Comparisons and Perspectives”
co-sponsored by the International Migration Policy Program, Carnegie Endowment for
International Peace and the Fundação Luso-Americana para o Desenvolvimento, Lisbon, Portugal,
June 4, 1999) at 6.
96 See infra note 189 and accompanying text.
97 This is not to say that there are no international law standards on family reunification. See e.g.
I. Brownlie, “The Application of Contemporary Standards of International Law to Cases involving
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Moreover, anything short of an automatic right to acquire the other spouse’s
nationality involves some waiting period, during which the spouse seeking
nationality is excluded from the protection and benefits of that nationality,98 and
may be vulnerable to, for example, deportation and separation from his or her
children. Relatedly, as the U.S. example shows with respect to immigration status, any facilitation of the acquisition of nationality that depends on marriage to a
national gives the national spouse control over the non-national spouse and thus
creates the risk that the non-national spouse, most often the wife, may endure
domestic abuse in order to acquire residency status. In the context of U.S. immigration law, where only the citizen or permanent resident spouse could petition for
the foreign spouse to become a resident, critics have documented this risk:
A woman from the Philippines was abused by her U.S. citizen spouse.
He threatened to have immigration authorities deport her to the Philippines
if she tried to leave him. She stayed. He later cut her all over her back,
head, and hands with a meat cleaver. A U.S. citizen never filed a petition
for his Ecuadorian wife even though he had been married to her for three
years and she was pregnant. She therefore could not gain legal status.
A Dominican woman fled from her U.S. citizen husband’s violent
assaults only after being hospitalized for the fifth time as a result of his
beatings. Her husband bashed her head against the wall and threatened to
kill her if she told her doctor what happened. She had been afraid to leave
him because he controlled her immigration status.99
Such risks have been diminished by changes to U.S. law that allow the foreign spouse to pursue her immigration status independently if she can demonstrate that she or her child was abused and she meets the extreme hardship and
other additional criteria.100
Remarkably, the International Women’s Suffrage Alliance draft convention
presented to the ILA in 1923 contains a provision that special facilities should
be given to one spouse to acquire the nationality of the other.101 In current international law, however, there are few grounds to argue for the right of one spouse
to the nationality of the other or to a fast-track naturalization procedure. The
1997 European Convention on Nationality is unusual in providing that each
Separation of Husband and Wife as a Consequences of Administrative Action by the Israeli authorities in the Occupied Territories” (1990/91) 6 Palestine Y.B. Int’l L. 113.
98 Cf. Costa Rica Advisory Opinion, supra note 68 at para.46.
99 J.M. Calvo, “Spouse-Based Immigration Laws: The Legacy of Coverture” in A.K. Wing, ed.,
Critical Race Feminism: A Reader (New York: New York University Press, 1997) 380 at 380. See
also National Association of Women and the Law, Gender Analysis of Immigration and Refugee
Protection Legislation and Policy (Submission to Citizenship and Immigration Canada. Ad Hoc
Committee on Gender Analysis of the Immigration Act) (Ottawa, 1999) at 5-6 (discussing negative
impact of sponsorship).
100 Calvo, supra note 99 at 384.
101 32nd Conference Report, supra note 29 at 46.
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state party shall facilitate in its internal law the acquisition of its nationality for
spouses of its nationals.102 To argue more generally, the right to family life
would have to be interpreted so as to require a state to accept the spouses of its
nationals as its nationals. Using feminist theory,103 it might also be possible to
argue that a woman’s right to equality in nationality law must be interpreted
relationally; that is, incorporating her interdependency with others. Along relational lines, the Supreme Court of Zimbabwe found that a woman’s freedom of
movement was impaired if her foreign husband was not legally able to reside
permanently with her in Zimbabwe or to work there.104 The Botswana Court of
Appeal in Unity Dow similarly accepted that Unity Dow’s mobility rights were
limited if she could not travel with her children absent their father because the
children had his nationality and not hers. Judge President Amissah wrote, “the
courts are not entitled to look at life in a compartmentalised form, with the misfortunes and disabilities of one always kept separate and sanitised from the misfortunes and disabilities of others.”105 The Zambian High Court also relied on
the mother’s constitutionally guaranteed freedom of movement in finding it
unconstitutional to require the consent of the father before a mother can include
her children in her passport or they can obtain their own passport.106
To the extent that arguments for a right to acquire the nationality of the other
spouse or to the facilitation of that nationality rely on some idea of the family,
discrimination in the idea of the family becomes an issue. Some authors argue
that what constitutes a family is taken for granted and tends, in fact, to be the
traditional Western idea of a nuclear family.107 This may create problems for
same-sex relationships, unmarried couples and marriages according to nonWestern cultures (for example, “arranged marriages”). In a 1999 case, for example, the South African Constitutional Court found that legislation facilitating the
issuance of an immigration permit to foreign spouses of South Africans, where
“spouse” referred to a marriage under civil or customary law, was unconstitutional because it discriminated against same-sex couples.108 Insofar as nationality might be based on some expanded notion of family, however, it is important to note that not all lesbian women would favour legal changes that require
102
103
European Convention on Nationality, supra note 52 at art. 6(4)(a).
See e.g. J. Nedelsky, “Law, Boundaries and the Bounded Self” in R. Post, ed., Law and the
Order of Culture (1991) 162.
104 Rattigan, supra note 17; Salem, supra note 18; Kohlhaas, supra note 19.
105 Unity Dow (C.A.), supra note 12 at 659.
106 Nawakwi, supra note 18.
107 Mullen, “Nationality and Immigration” in McLean & Burrows, eds., The Legal Relevance of
Gender (Basingstoke: Macmillan Press, 1988) at 162.
108 National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs 2000 (1) BCLR
39 (South African Constitutional Court), confirming National Coalition for Gay and Lesbian
Equality v. Minister of Home Affairs 1999 (3) BCLR 280 (C), 1999 (3) SA 173 (C) ((Cape of Good
Hope Provincial High Court). As the Cape High Court pointed out, common-law marriages and
Muslim and Hindu marriages would also be excluded from preferential immigration treatment,
although this exclusion was not challenged.
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INTERNATIONAL LAW ASSOCIATION
them to identify their relationships as family. In the North American debate over
family status for lesbian and gay relationships, some lesbians and gays take the
position that their relationships should be recognized as family and accorded the
same rights and benefits. But others argue that lesbian and gay relationships
should not be legally defined as family, for reasons ranging from the obscuring
of important differences between these and heterosexual relationships to the
rejection of the family as an institution oppressive for women.109
“Arranged marriages” and other forms of family found in non-Western cultures raise similarly complex issues. In the context of lobbying to change British
immigration policy, for instance, women of colour criticized the mainstream
women’s movement for its implicit condemnation of “arranged marriages.”
Hazel Carby wrote:
We would not wish to deny that the family can be a source of oppression for us but we also wish to examine how the black family has been a
site of political and cultural resistance to racism...The media’s “horror stories” about Asian girls and arranged marriages bear little relation to their
experience. The “feminist” version of the ideology presents Asian women
as being in need of liberation, not in terms of their own herstory and
needs, but into the “progressive” social mores and customs of the metropolitan West.110
The third concept relevant to equality in nationality law is dual nationality.
States have traditionally been opposed to dual nationality and have taken various international legal measures to reduce or eliminate cases of dual nationality. Insofar as this aversion relates to such practical problems as which of two
states is entitled to represent an individual in an international claim, it may be
lessened by the development of rules for dealing with such situations.111 Insofar
as the state’s concern with dual nationality is divided loyalty - on the dubious
assumption that reducing dual nationality, in fact, reduces torn loyalties - it will
not necessarily be persuasive to point to a trend primarily among Western states
or between friendly states toward the acceptance of multiple nationality.112 At
109
See e.g. B. Cossman, “Family inside/out” and J. Freeman, “Defining family in Mossop v. DSS:
The challenge of anti-essentialism and interactive discrimination for human rights litigation” in
(1994) 44 U. Toronto L.J.
110 H. Carby, “White Women Listen: Black Feminism and the Boundaries of Sisterhood” in The
Empire Strikes Back: Race and Racism in 70s Britain (Centre for Contemporary Cultural
Studies/Hutchinson University Library, 1982), quoted in Bhabha et al., eds., supra note 79 at 58.
Regarding immigrant cultures, see also National Association of Women and the Law, supra note 99
at 7-8 (noting that for immigrant women, the skills and resources of extended family members are
particularly important as essential support in terms of child care, social and emotional support and
financial income).
111 On such rules, see note 55 and accompanying text.
112 See T.M. Franck, “Clan and Superclan: Loyalty, Identity and Community in Law and Practice”
(1996) 90 AJIL 359 at 378-382.
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the same time, it is important to attend to who tends to raise concerns of divided loyalties - women or men - and whether these concerns are raised wherever
applicable or primarily where they work to the disadvantage of women.
5)
Approaches of Nationality Laws Toward Women
The principle that the nationality of the wife follows that of the husband
(examined in section 5.1) was not a principle of international law. It was a principle that governed the nationality of married women in the vast majority of
domestic legal systems at the turn of the century and had already slowly and in
piecemeal fashion begun to change by the time that international law began to
regulate the issue in the 1930s.
International law did not readily approach the issue of women’s nationality
on the basis of gender equality. It first approached women’s nationality as a
problem of statelessness and dual nationality caused by conflicts among the
nationality laws of different states (section 5.2), an approach that is still found,
for example, in states’ reservations to the Women’s Convention article on nationality. Gradually, international law, and particularly international human rights
law, came to deal with women’s nationality as an issue of equality (section 5.3).
Most recently, the conclusion of the Convention on the Rights of the Child (the
Children’s Convention)113 and two regional conventions on children’s rights
suggest the need to pursue the intersection of women’s and children’s rights of
nationality (section 5.4).
5.1) Inequality
According to a United Nations study, the nationality of the wife followed the
nationality of the husband in all domestic legal systems in the world at the end
of the first decade of the twentieth century, with the exception of a few Latin
American states.114
If strictly applied, this principle operates so that
The alien woman marrying a national automatically acquires her husband’s nationality; the woman national marrying an alien automatically
loses her original nationality.
The alien woman whose alien husband acquires the nationality of the
country during marriage acquires automatically his new nationality; the
woman national whose husband, a national, loses his nationality during
marriage, automatically loses her nationality.
The alien woman, married to a national, loses her nationality acquired
through marriage, upon dissolution of the marriage; the woman national
113
114
Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.
Historical Background, supra note 43 at 3.
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married to an alien reacquires automatically her original nationality (lost
through marriage), upon dissolution of the marriage.115
This legal regime for the nationality of married women rests on two premises. The first premise is that all members of a family should have the same
nationality, and the second that the husband determines what that nationality is.
116 Strictly speaking, the first premise does not depend on gender. At the 33rd
ILA Conference in 1924, Dr. G.M. Palliccia of Italy remarked jocularly, “let us
have one nationality, and, if you like, let us choose the nationality of the wife,
instead of that of the man. There will be perhaps a certain return to the period
of matriarchy, but, after all, the world was not so bad under matriarchy.”117 The
second premise relies on a patriarchal notion of the family, entrenched in the
law of the period, which gave the husband a privileged status and the power to
make decisions affecting the family.
The first premise, that a family should have the same nationality, was deeply
bound up with a vision of the international order as a power struggle between
states. Husband and wife should not have different nationalities because through
the powerful attachment of nationality, the rivalries, tensions and hostilities that
existed between states would be projected onto the marriage. Trinh Dinh Thao
quotes Varambon’s description of the household with two nationalities:
a rivalry of nation to nation, interests opposed between persons united,
different affections, diverse fatherlands, enemy wishes for countries perhaps at war, and this between persons who have sworn to love one another, between whom everything is common and who must never leave one
another.118
Not only would a marriage between people of different nationalities tend to
reproduce the antagonism between states, it would, in turn, give rise to conflicts
between states as the protectors of the respective spouses.119
From the premise that a family should have the same nationality, it followed,
to the male mind of the day, that the husband should determine that nationality.
In his manual on private international law, published in 1923, René Foignet
writes: “[i]t is in conformity with the spirit of marriage that spouses have the
same nationality. From that moment, it is natural that the nationality of the husband spread to the wife.”120
115
116
Nationality of Married Women, supra note 89 at 8.
See Costa Rica Advisory Opinion, supra note 68 at para.64; Historical Background, supra note
43 at 3.
117 33rd Conference Report, supra note 37 at 43.
118 [Rapporteur’s translation] Trinh Dinh Thao, De l’Influence du Mariage sur la Nationalité de la
Femme (Aix-en-Provence: Editions Paul Roubaud, 1929) 15, quoting from Varambon, Revue pratique de Droit Français (1859) v.8, at 50 (Presumably the author would not quote from an 1859
work unless in his estimation its argument still enjoyed some currency.).
119 MacKenzie v. Hare, supra note 69.
120 [Rapporteur’s translation] R. Foignet, Manuel élémentaire de droit international privé 7th ed.
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Conversely, the premise that the family should have the same nationality can
be derived from the idea of the pater familias reflected in the premise that the
husband decides the family’s nationality. If the wife has a different nationality,
then she will feel a duty of obedience to her country that rivals her duty of obedience to her husband. She must acquire his nationality so that he will have no
rival for her obedience.121
If the intertwined concerns of divided loyalty and the preservation of patriarchy were used to oppose the first generation equality issue of a woman’s right
to choose her nationality independent of her husband, these concerns, somewhat
transmuted, continue to figure in the second and third generations of equality
issues in nationality law. Once the members of a family can have different
nationalities, the concern with divided loyalty becomes a concern with the
prospect that some or all of them will be dual nationals and therefore subject to
conflicting allegiances. As will be seen,122 this concern is used as a justification
for the law that only a father can pass nationality to a child. Since the other second generation equality issue, equal naturalization procedures for foreign husbands and foreign wives, does not in and of itself necessitate allowing the foreign spouse to retain his or her original nationality, it does not raise the concern
of divided loyalty. However, a third generation equality analysis points to the
possibility that absent the right to become a dual national, a spouse of one
nationality living in the state of the other spouse’s nationality, still most often
the wife living in the husband’s state, may effectively have no choice but
become a national of that state and renounce her own nationality, her nationality thereby following his and reproducing the very situation that the campaign
for the independent nationality of married women was intended to redress.
The patrilineal justification used historically to justify the unequal regime of
dependent nationality for married women reappears in later generations of equality issues as a cultural defence, primarily in the second generation context of nationality laws that entitle only a father to pass nationality to a child. In Unity Dow, the
Attorney General of Botswana conceded that the Citizenship Act discriminated
against Botswana women because it allowed only Botswana men to transmit citizenship to their children, but argued that this discrimination was not unconstitutional when the constitution was properly interpreted as a reflection of a patrilineal
society. Both customary law and the Roman Dutch common law in Botswana, the
(Paris: Librairie Arthur Rousseau, 1923) 83. The brevity of Foignet’s treatment may be due to the
fact that his manual is aimed at students in law and candidates for diplomatic and consular careers,
but the intended readership does not explain why the recognition that spouses must have the same
nationality leads naturally to that nationality being the husband’s. Foignet’s conclusion may have
reflected a wife’s legal duty under the Civil Code to obey the husband and follow him in all his
changes of residence, however other French international lawyers maintained that the Code did not
apply this duty of obedience to the wife’s nationality because the Code accepted that the husband’s
nationality could change over the course of the marriage without the wife’s also changing.
121 See Makarov, supra note 37 at 166, citing E. Audinet, La nationalité française, Revue, 1928, at
30 and Pelletier, La nationalité de la femme mariée (1925) at 9.
122 Section 5.2, below.
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Attorney General argued, were based upon the pater familias as the head of the
family.123 Dealing with this argument on its own terms, Judge Amissah, President
of the Court, concluded that the development of citizenship law does not support
the premise that citizenship must follow the customary or traditional systems of a
people. In particular, no claim had been made that the British jus soli principle that
prevailed in Botswana prior to independence had interfered with the male orientation of Botswana customary society. Judge President Amissah reasoned that
Botswana nationality in the civic sense need not be the same as Botswana nationality in the sense of the Botswana people, which would be a matter of descent
through the father. Although Botswana could base its citizenship law on descent,
there was no strong historical reason for it to do so. On the contrary, the constitutional and international guarantee of equality was a compelling reason for the citizenship law not to follow custom. Along similar lines, Lubna Mariam, in a comment on the Malkani case, argues that citizenship is a secular concept and should
be determined separate from personal laws based on religious predicates.124
A different internal criticism of the culture justification for tracing nationality
through the father is given by a Brussels-based Pakistani woman journalist married to a Spanish man and unable, as a woman, to pass her Pakistani nationality
to her children. She argues that if anything, Pakistani women raising their children by a foreign husband outside Pakistan are more likely than Pakistani men
bringing up their children with a foreign wife abroad to ensure that the children
speak Urdu, know about Islam and visit Pakistan as often as possible. If the logic
is preservation of culture, then, on this logic, Pakistani women are more deserving than Pakistani men of the right to pass their nationality to their children.125
123 Unity Dow v. Attorney General of Botswana, Heads of Argument, reprinted in U. Dow, ed., The
Citizenship Case: The Attorney General of the Republic of Botswana v. Unity Dow (Gaborone:
Lentswe La Lesedi, 1995) at 20-21, 63-65.
124 Mariam, supra note 81. See also Salma Sobhan’s criticism of the Malkani decision, discussed
in ibid. M. Rafiqul Islam also describes Bangladesh nationality law as secular. M. Rafiqul Islam,
“The Nationality Law and Practice of Bangladesh” in K. Swan Sik, ed., Nationality and
International Law in Asian Perspective (Dordrecht: Martinus Nijhoff, 1990) 1 at 2.
Even if citizenship is not a secular concept, there is an ongoing discussion in the literature and within CEDAW on the reinterpretation of Islamic law in ways supportive of women’s equality. For a
sense of the literature, see A.A. An-Na’im, “State Responsibility Under International Human Rights
Law to Change Religious and Customary Laws”, A.M.A. Halim, “Challenges to the Application of
International Women’s Human Rights in the Sudan” and S. Hossain, “Equality in the Home:
Women’s Rights and Personal Laws in South Asia” in R.J. Cook, ed., Human Rights of Women:
National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994). An
example of CEDAW’s engagement with the issue is found in its questioning of the Libyan Arab
Jamahiriya, Report of the Committee on the Elimination of Discrimination Against Women
(Thirteenth Session), UN GAOR, 49th Sess., Supp. No.38, UN Doc. A/49/38 (1994) at para.132..
125 “Why Can’t a Woman be Treated Like a Man?” (1997) 9:1&2 Women Living Under Muslim
Law Newsletter 1. Paradoxically, then, the preservation of a patrilineal culture is better secured by
a matrilineal nationality law. But if a patrilineal nationality law would dilute the culture, a matrilineal one would evolve it, since the author educates her children to see Pakistan as a modern
Islamic state that aspires to equality for women.
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Also within the framework of respect for culture, Unity Dow argued successfully that the Botswana Citizenship Act actually introduced a tension
between respect for culture and respect for marriage because the Act made an
exception to the patrilineal rule for children born outside wedlock. By permitting a single mother to give citizenship to her child, the Act created an incentive
for women to live and bear children outside wedlock.126
5.2) Statelessness and Dual Nationality
By the time that Alexandre Nikolaevitch Makarov lectured on the nationality
of the married woman at the Hague Academy of International Law in 1937,127
the nationality laws of states ranged from those that were still based on the principle of dependent nationality for married women to those that had adopted the
principle of independent nationality, and covered a variety of intermediate
options. As a result of conflicts between these different nationality laws, women
at the time of marriage or divorce were increasingly128 likely to become either
stateless or dual nationals. If a woman from a state that automatically deprived
her of her nationality on marriage (based on some form of dependent nationality) married a man from a state that did not automatically grant her nationality on
marriage (based on some form of independent nationality), then she became
stateless. Conversely, if marriage, under the nationality laws of her state, had no
effect on her nationality (independent nationality) and marriage, under the laws
of her husband’s state, gave her his nationality (dependent nationality), then she
became a dual national. Similarly, if the state traced the child’s nationality only
through the husband (the patrilineal form of jus sanguinis), then the child of a
stateless, unknown or unmarried father would be stateless. It was these “evils of
statelessness and dual nationality,” rather than women’s equality, with which the
ILA’s Committee on Nationality and Naturalisation was concerned in 1924.129
While some solution to the problem of stateless women and children was
clearly needed, the solution of the 1930 Hague Codification Conference was
capable of reproducing the effect of dependent nationality.
The Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws,130 which emerged from the 1930 Hague Codification
Conference held under League of Nations auspices, is significant as the first
international attempt to give every person a nationality.131 The right to a nationality is also recognized by the Universal Declaration on Human Rights,132
126
127
128
Unity Dow (H.C.), supra note 11 at 588; Unity Dow (C.A.), supra note 12 at 588 at 630.
Makarov, supra note 37.
Statelessness was also caused by other types of conflicts between nationality laws. For a series
of examples, see 33rd Conference Report, supra note 37 at 26-28. For an overview of the contemporary causes of statelessness, see C.A. Batchelor, supra note 5.
129 33rd Conference Report, supra note 37 at 26.
130 Hague Convention on Conflict of Nationality Laws, supra note 41.
131 J.M.M. Chan, “The Right to Nationality as a Human Right” (1991) 12 Hum. Rts. L.J. 1 at 2.
132 Universal Declaration on Human Rights, supra note 51 at art. 15.
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Convention on the Reduction of Statelessness,133 International Convention on
the Elimination of All Forms of Racial Discrimination,134 American Convention
on Human Rights135 and European Convention on Nationality,136 although the
International Covenant on Civil and Political Rights, African Charter on
Human and Peoples’ Rights and European Convention on Human Rights make
no mention of the right. The International Covenant on Civil and Political
Rights does, however, include a child’s right to a nationality,137 as do the
Children’s Convention138 and the African Charter on the Rights and Welfare of
a Child.139 While the right to a nationality is probably not part of international
customary law, there does seem to be a customary trend toward the elimination
of statelessness. The only other right of nationality where some sort of customary consensus seems to exist is the right to change one’s nationality, but different states attach different conditions to its exercise.140
As concerns the nationality of married women, only one of the four articles
on the subject in the Hague Convention appears to reflect the principle of
women’s equality, as opposed to the aim of reducing statelessness and dual
nationality. Namely, article 10 provides that “naturalisation of the husband during marriage shall not involve a change in the nationality of the wife except with
her consent.” 141
In contrast, article 8 of the Hague Convention reads: “[i]f the national law of
the wife causes her to lose her nationality on marriage with a foreigner, this consequence shall be conditional on her acquiring the nationality of the husband.”142
The effect of article 8 is that so long as the husband’s state subscribes to the principle of dependent nationality, the wife’s state is also free to apply it. If states
increasingly abandon the principle of dependent nationality, then article 8 would
operate so as to require those states that still accept the principle to increasingly
make exceptions to its application. In and of itself, however, article 8 is neutral
as between the principles of dependent and independent nationality.143
In a similar vein, a protocol to the Hague Convention gives a mother the right
133
134
Convention on the Reduction of Statelessness, 30 August 1961, 989 U.N.T.S. 175.
International Convention on the Elimination of All Forms of Racial Discrimination, supra note
51 at art. 5(d)(iii).
135 American Convention On Human Rights, supra note 51 at art. 20.
136 European Convention on Nationality, supra note 52 at art. 4(a).
137 International Covenant on Civil and Political Rights, supra note 51 at art.24(3).
138 Children’s Convention, supra note 113 at art. 7(1). See further section 5.4 below.
139 African Charter on the Rights and Welfare of a Child, OAU Doc. CAB/Leg/153 (1990), (1993)
1 Afr. Y.B. Int’l L. 295, art.6(3).
140 Chan, supra note 131 at 8,11.
141 On the one hand, a United Nations study states that the purpose of article 10 is actually to avoid
statelessness and dual nationality. Historical Background, supra note 43 at 10. On the other, Weis
maintains that the principle of equality motivates not only article 10, but also, to some extent, article 11. Weis, supra note 45 at 97.
142 See also Hague Convention on Conflict of Nationality Laws, supra note 41 at art. 9.
143 Historical Background, supra note 43 at 10.
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to pass on her nationality to her child where the child would otherwise be stateless:
In a State whose nationality is not conferred by the mere fact of birth in
its territory, a person born in its territory of a mother possessing the nationality of that State and of a father without nationality or of unknown nationality shall have the nationality of the said State.144
In these respects, the relevant provisions of the Convention on The Reduction
of Statelessness, concluded some three decades later, do not differ significantly.145
Thus, developments in international law aimed at solving problems of statelessness, including those created by the state-by-state reform of laws on the
nationality of married women, did not necessarily promote the equality of men
and women in matters of nationality. Indeed, from the perspective of women’s
statelessness, the principle of dependent nationality was basically as satisfactory as the principle of independent nationality. Problems arose only when the
nationality laws of states were not uniformly based on one principle or the other.
Even now, some states give statelessness as the reason for their reservations
or declarations to article 9 of the Women’s Convention. Turkey’s declaration
states that article 9(1) does not conflict with the Turkish Law on Nationality
since the intent of the law’s provisions regulating acquisition of citizenship
through marriage is to prevent statelessness.” Morocco’s reservation to article
9(2), which gives women equal rights with respect to the nationality of their
children, is necessitated by its nationality law, which, similar to the Protocol to
the Hague Convention, “permits a child to bear the nationality of its mother
only in the cases where it is born to an unknown father, regardless of place of
birth, or to a stateless father, when born in Morocco, and it does so in order to
guarantee to each child its right to a nationality.”
While statelessness is clearly an important problem for both states and women
themselves, dual nationality is more complicated. Moreover, while the problem
of statelessness admits of nondiscriminatory solutions, the problem of dual
nationality does not insofar as states seek a rule that choooses or forces a choice
between the mother’s or the father’s nationality, in the case of a child; or between
the husband’s or the wife’s nationality, in the case of spouses. This makes dual
nationality an obstacle to both second and third generation equality issues.
States’ ingrained opposition to dual nationality generally continues their concern with divided loyalty, which was used to support the principle of dependent
nationality. This antipathy to dual nationality is clearly articulated in the preamble to the Hague Convention, which reads in part:
144
Protocol Relating to a Certain Case of Statelessness (The Hague, 1930), L.N. Doc.
C.26.M.15.1931.V, art. 1.
145 See Convention on the Reduction of Statelessness, supra note 133 at arts.4-6, 8.
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Being convinced that it is in the general interest of the international community to secure that all its members should recognize that every person
should have a nationality and should have one nationality only;
Recognizing accordingly that the ideal towards which the efforts of
humanity should be directed in this domain is the abolition of all cases both
of statelessness and of double nationality;
Although there are some indications that states are becoming more tolerant
of dual nationality,146 this is not a universal trend.
On the assumption that the international order is perpetually on the verge of
war, dual nationality might ill serve the individual as well as the state.
Wyndham Bewes introduces the 1924 report of the ILA Committee on
Nationality and Naturalisation with the observation that
[d]ouble nationality is ... a serious inconvenience, for, if one of the competing States is at war with the other competing State, the unfortunate victim would be shot in the chest by one of them and in the back by the other,
and he doubtless would not survive.147
Indeed, the international regulation of dual nationality deals with, among
other things, the military obligations owed by dual nationals.148 Commentators
have argued, however, that the assumption of antagonistic states is out-dated
and should no longer prevent the recognition of dual nationality.149
For women, moreover, dual nationality is used as a reason why only men can
convey their nationality to their children. Egypt explains its reservation to article 9(2) of the Women’s Convention in these terms:
This is in order to prevent a child’s acquisition of two nationalities where
his parents are of different nationalities, since this may be prejudicial to his
future. It is clear that the child’s acquisition of his father’s nationality is the
procedure most suitable for the child and that this does not infringe upon
the principle of equality between men and women, since it is customary for
a woman to agree, upon marrying an alien, that her children shall be of the
father’s nationality.
In this connection, Judge President Amissah in Unity Dow disposes of the
dual nationality justification as follows:
146
147
148
Franck, supra note 112.
33rd Conference Report, supra note 37 at 23.
E.g. European Convention on Reduction of Cases of Multiple Nationality and Military
Obligations in Cases of Multiple Nationality, 6 May 1963, E.T.S. No.43.
149 See e.g. P.J. Spiro, “Dual Nationality and the Meaning of Citizenship” (1997) 46 Emory L.J.
1411.
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... the fact that different states follow different criteria in conferring citizenship means that whatever Botswana provides in its citizenship laws
may not achieve the objective of eliminating dual citizenship, if that indeed
is what is desired ... In this very case, the respondent’s eldest child, Cheshe,
who acquired Botswana citizenship at birth because her parents were not
married at the time, also became, and presumably still is, an American citizen by descent. Such a child may continue with this dual citizenship for the
rest of his or her life. But those states which want to avoid dual nationality
would then require the child to opt for the citizenship which he or she wishes to continue with upon attaining majority. The device for eliminating dual
citizenship does not, therefore, appear to me to lie in legislation which discriminates between the sexes of the parents.150
In a 1983 judgment, the Italian Constitutional Court considered whether the
avoidance of dual nationality justified a 1912 law providing that the child of a
male Italian citizen was an Italian citizen by birth, but making no such provision for the child of a female Italian citizen. The Court, which found the law
unconstitutional, concluded that the need to avoid dual nationality was not a
valid reason to ignore the articles of the Constitution on equality before the law
without distinction as to sex and on the moral and legal equality of spouses.
According to the Court, the need to realize the constitutional principle of equality as regards the acquisition of citizenship by birth must take precedence,
despite the serious inconveniences caused by dual nationality. Difficulties arising from children’s dual citizenship could be minimised by legislation.151
If the opposition of states to dual nationality is an obstacle to women’s equal
right with men to convey their nationality to their children, a second generation
issue of equality, it also relates to the third generation issue of the relationship
between women’s equality and the protection of the family. Where a woman
retains her original nationality on marriage and chooses to acquire her husband’s nationality as well, the state interest, as evidenced by the 1963 European
Convention on Reduction of Cases of Multiple Nationality and Military
Obligations in Cases of Multiple Nationality,152 has traditionally been to
require her to renounce one of the two nationalities. Based on the millions of
mixed marriages between Europeans, the Council of Europe has found, however, that if the wife chooses her original nationality, the family may be divided
by discrimination, in particular as regards residence permits, work permits, foreign travel and, in case of separation, the right to see the children regularly.153
150
151
Unity Dow (C.A.), supra note 12 at 643-644.
Judgment No.30 of January 28, 1983, 62 Raccolta Ufficiale delle Sentenze e Ordinanze della
Corte Constituzionale 157 (Italian Constitutional Court) (unofficial translation provided by
Alessandra Prioreschi).
152 European Convention on Reduction of Cases of Multiple Nationality and Military Obligations
in Cases of Multiple Nationality, supra note 148.
153 Cited in Donner, supra note 48 at 215-216.
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But if these concerns cause the wife instead to acquire her husband’s nationality and, as a condition, to renounce her own, then the effect is no different than
that of the old principle of the dependent nationality of married women.154
For these reasons, the Parliamentary Assembly of the Council of Europe in
1988 adopted Recommendation 1081, which encourages a right to dual nationality in the case of mixed marriages. Recommendation 1081 reads in part:
4. Reaffirming the principle of equality of the spouses before the law;
5. Considering that, in view of the gravity of the economic and social
problems affecting spouses in mixed marriages, that is to say marriages
where the spouses have a different European nationality, it is desirable that
each of such spouses may have the right to acquire the nationality of the
other without losing his or her own nationality of origin;
6. Considering that the children born from mixed marriages should also
be entitled to acquire and keep the nationality of both of their parents;
...
8. Considering that it is only in exceptional cases that the fact that a person has several nationalities may render difficult the application of other
Council of Europe conventions and that this can hardly be considered an
argument against the multiple nationality principle;155
Several years later, a protocol was concluded amending the 1963 European
Convention on the Reduction of Multiple Nationality to the same effect (the
Second Protocol).156
Whereas the 1963 Convention, like the earlier Hague Convention, treats dual
nationality as the twin evil of statelessness, Recommendation 1081 and the
Second Protocol thus carve out mixed marriages as an exception. The 1997
European Convention on Nationality goes even further in that it eliminates the
principle of avoiding dual nationality altogether. The European Convention on
Nationality reduces dual nationality to a problem of co-ordination and bases
nationality law instead on the principles of the avoidance of statelessness and
equality. Articles 4 and 5 of the Convention read:
154
Although both foreign husbands and foreign wives may find themselves faced with this choice,
it stills seems to be more often the case that a wife will come to live in her husband’s state.
155 Council of Europe Parliamentary Assembly, Recommendation 1081 (1988) on Problems of
Nationality in Mixed Marriages, reprinted in Council of Europe, Council of Europe Achievements
in the Field of Law: Nationality, Doc. DIR/JUR(98)1 (Strasbourg: Council of Europe, 1998) at 76.
156 Second Protocol Amending the Convention on Reduction of Cases of Multiple Nationality and
Military Obligations in Cases of Multiple Nationality, 2 February 1993, E.T.S. No.149.
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Article 4 - Principles
The rules on nationality of each State Party shall be based on the following principles:
a
b
c
d
everyone has the right to a nationality;
statelessness shall be avoided;
no one shall be arbitrarily deprived of his or her nationality;
neither marriage nor the dissolution of a marriage between a national of a
State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other
spouse.
Article 5 - Non-discrimination
1. The rules of a State Party on nationality shall not contain distinctions or
include any practice which amounts to discrimination on the grounds of
sex, religion, race, colour, or national or ethnic origin.
2. Each State Party shall be guided by the principle of non-discrimination
between its nationals, whether they are nationals by birth or have acquired
its nationality subsequently.
Under the European Convention on Nationality, it is possible to achieve
equality other than at the expense of family life. Because a state may permit a
family to choose dual nationality, the family can have unity of nationality, with
the security that provides, without sacrificing the nationality of one spouse or
the other. In the first place, article 6(1)(a) provides that a state party shall grant
its nationality at birth to children born to a national within the state, and article
6(4) that a state party shall “facilitate in its internal law the acquisition of its
nationality” for spouses of its nationals and those children of its nationals who
are not already nationals by birth. In the second, article 14(1) requires states to
allow dual nationality in the case of spouses and children who have automatically acquired more than one nationality by operation of law and article 15 permits states to allow dual nationality generally.
The European Union offers an alternative way to reconcile equality and the
protection of family life in that it guarantees to the non-national spouse and
family members157 of an EU national158 the right of free movement, the right
of residence and to remain, as well as economic and social rights. The nonnational spouse is therefore not confronted with the choice between the security of the family and the retention of his or her own nationality. Moreover, there
157
Who come within the Community definition as laid down in secondary legislation and elaborated on by the European Court of Justice in a series of preliminary rulings.
158 Who comes within the Community definition of workers, self-employed, service
provider/recipient, student, of independent means or retired - laid down in the EC Treaty, secondary
legislation and elaborated on by the European Court of Justice in a series of preliminary rulings.
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is a proposal in the EU to grant in the event of the dissolution of the marriage
an independent right of residence and right of work for the family members
after a residence period of 3 years.159 That is, provided that the non-national
family members satisfy the three-year residency requirement, the rights they
enjoyed by virtue of their relationship to an EU national are not immediately
lost on the break-up of the marriage. As will be seen,160 the Children’s
Convention provides another example of guaranteeing certain family-related
rights to non-national family members and thus providing a functional equivalent to their becoming nationals. As was noted at the Committee’s working session at the 68th Conference, the viability of this functional approach depends on
whether the rights involved can readily be made effective.
5.3) Equality
Women in the Americas were the first to succeed internationally in having
women’s nationality treated as an issue of equal rights. Created by resolution of
the Sixth Pan American Conference in 1928, the Inter-American Commission
of Women was charged with “the preparation of juridical information and data
of any other kind which may be deemed advisable to enable the Seventh
International Conference of American States to take up the consideration of the
civil and political equality of women in the continent.”161 At the Seventh Pan
American Conference, the Commission presented a draft convention that
became the 1933 Montevideo Convention on the Nationality of Married Women.
Its single substantive provision was contained in article 1, in which the parties
declare that “[t]here will be no distinction based on sex as regards nationality,
in their legislation or in their practice.” 162
Subsequent international instruments that pertain to women’s equality in
nationality law may be divided into those dealing with women’s equality in the
context of nationality (discussed in section 5.3.1) and those guaranteeing
women’s equality generally and in the context of other rights relevant to nationality (discussed in section 5.3.2).163
159
COM (1998) 394 final (which would amend regulation 1612/68 and 1408/81 as well as directive 68/360). The proposal also includes extending the definition of spouse to include the partner
assimilated to the spouse where the host Member State recognizes the situation of unmarried couples for its own nationals. The Rapporteur is grateful to alternate Committee member Patricia
Conlan for this account of EU developments.
160 Section 5.4, below.
161 Quoted in Scott, supra note 39 at 219.
162 Montevideo Convention on the Nationality of Married Women, supra note 40. See also
Montevideo Convention on Nationality, 26 December 1933, International Conferences of
American States - Supplement 1933-1940 (Washington: Carnegie Endowment for International
Peace, 1940) 108, art.6; American Declaration on the Rights and Duties of Man, OAS. Res. XXX,
adopted by the Ninth International Conference of American States (March 30-May 2, 1948),
OASOR OEA/Ser.L/V/I.4 Rev. (1965), art. II.
163 It should be noted that some of the latter instruments provide for an autonomous equality right,
which applies independent of whether another right in the instrument is violated, while others have
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5.3.1) Equality Rights in Nationality Law
The 1948 Universal Declaration of Human Rights proclaims both the right
of non-discrimination on the grounds of sex164 and the right to a nationality.165
By reading the two together, it can be argued that the Universal Declaration
prohibits sexual discrimination in the laws awarding nationality. The 1969
American Convention on Human Rights also includes both the right to equality166 and the right to a nationality.167 In a 1984 Advisory Opinion,168 the InterAmerican Court of Human Rights held that Costa Rica’s proposal to amend the
naturalisation provisions of its constitution such that a foreign woman who marries a Costa Rican would be accorded special consideration for obtaining Costa
Rican nationality constituted discrimination contrary to article 24 of the
American Convention on equality before the law and article 17(4) on the equality of spouses.
Although not directly violating the right to a nationality guaranteed by article 20 of the American Convention,169 the proposed constitutional amendment
also raised issues bearing on that right.170 In particular, the amendment was
drafted so that
foreigners who lose their nationality upon marrying a Costa Rican would
have to remain stateless for at least two years because they cannot comply
with one of the obligatory requirements for naturalization unless they have
been married for that period of time. It should also be noted that it is by no
means certain that statelessness would be limited to a period of two years
only. This uncertainty results from the fact that the other concurrent requirement mandates a two-year period of residence in the country. Foreigners
forced to leave the country temporarily due to unforeseen circumstances
would continue to be stateless for an indefinite length of time until they will
have completed all the concurrent requirements established under this proposed amendment.171
Despite this result, however, the proposed constitutional amendment did not
violate the women’s right to a nationality because her statelessness was technically brought about by the nationality laws of her own state and not the Costa
Rican Constitution.
only a subordinate equality right, which only applies to discrimination with respect to other rights
in the instrument. See A.F. Bayefsky, “The Principle of Equality or Non-Discrimination in
International Law” (1990) 11 Hum. Rts. L.J. 1 at 3-4.
164 Universal Declaration, supra note 51 at art. 2.
165 Ibid. at art.15.
166 American Convention On Human Rights, supra note 51 at arts. 1(1), 17(4) and 24.
167 Ibid. at art.20.
168 Costa Rica Advisory Opinion, supra note 68.
169 Ibid. at para.48.
170 Ibid. at para.43.
171 Ibid. at para.46.
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In this connection, the Inter-American Court refers to the Convention on the
Nationality of Married Women and the Women’s Convention as reflecting “current trends in international law.”172 The Convention on the Nationality of
Married Women,173 which came into force in 1958, establishes the independent
nationality of a married woman,174 but neither a woman’s equal right to pass on
her nationality to her child nor that of a foreign husband to special naturalisation procedures where such procedures have been established for foreign wives.
On the contrary, by providing that the foreign wife of a national may, at her
request, “acquire the nationality of her husband through specially privileged
naturalization procedures,”175 the Convention reinforces the assumption that a
wife will follow her husband. “I think probably a very great number of international marriages are the other way about,” Chrystal Macmillan remarked at the
33rd ILA Conference in 1924, proposing that a foreign husband and a foreign
wife be given the same special treatment.176
The 1979 Women’s Convention goes further than the Convention on the
Nationality of Married Women in several respects. Article 9 of the Women’s
Convention reads:
1. States Parties shall grant women equal rights with men to acquire, change
or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage
shall automatically change the nationality of the wife, render her stateless
or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the
nationality of their children.
Like the Convention on the Nationality of Married Women, the Women’s
Convention entrenches the first generation equality principle of independent
nationality for married women. Article 9(1) also protects women against statelessness and ensures that they are not forced to take the nationality of their husband. Since separate reference is made in article 9(1) to an automatic change of
the wife’s nationality, the term “force” may mean something other than de lege.
On a strong reading, it may prohibit the situation on which the third generation
172
Ibid. at para.49. In Donner’s view, supra note 48 at 209-210, the Convention on the Nationality
of Married Women is not declaratory of customary international law. She cites in support Mejia v.
Regierungsrat des Kanton Bern, 19 May 1963, 32 I.L.R. 192. Compare Airola v. Commission (No.
21/74), [1975] 1 C.J.E.C. Rep. 221 and van den Broeck v. Commission (No. C37/74), [1975] 1
C.J.E.C. Rep. 235.
173 Convention on the Nationality of Married Women, supra note 44.
174 Ibid. at arts. 1-2.
175 Ibid. at art. 3. For the drafting history of article 3, see Historical Background, supra note 43 at
40-44.
176 33rd Conference Report, supra note 37 at 40.
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of equality issues is based, where a wife has no practical option but to take her
husband’s nationality.
Unlike the Convention on the Nationality of Married Women, the Women’s
Convention also addresses the second generation of equality issues associated
with nationality. Whereas the Convention on the Nationality of Married Women
is silent on the nationality of children, article 9(2) grants women and men equal
rights in this regard.
While the Convention on the Nationality of Married Women envisages specialised naturalisation procedures for foreign wives, it is generally assumed that
the Women’s Convention requires the same procedures for both wives and husbands. Moreover, it may be argued, given the attention to de facto unions in
CEDAW’s General Recommendation dealing with articles 9, 15 and 16 of the
Women’s Convention, that whatever procedures apply to wives and husbands
should apply to de facto partners as well. The interpretation of equality in article
9 of the Women’s Convention as requiring identical naturalisation procedures for
wives and husbands, and arguably also de facto partners, is consistent with the
Inter-American Court’s advisory opinion on the Costa Rican constitution and
also with the jurisprudence of the UN Human Rights Committee and European
Court of Human Rights on gender equality in immigration procedures. This
interpretation is also consistent with CEDAW’s commentary on article 15(4) of
the Women’s Convention, which gives women and men “the same rights with
regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile.” In CEDAW’s view, article 15(4) requires that
migrant women who live and work temporarily in another country should be permitted the same rights as men to have their spouses, partners and children join
them.177 It should be noted, however, that article 15 refers to the “same” rights,
while article 9 involves the more complex notion of “equal” rights.
While the Women’s Convention requires states to equalize the procedures for
the acquisition of nationality by the spouse of a national, it does not go so far as
to oblige states to facilitate a spouse’s acquisition of nationality.
The progress represented by article 9 of the Women’s Convention is hampered by the large number of reservations, made by a range of states, to all or
part of that article.178 Although a number of states have entered objections,179
these objecting states maintain that the Women’s Convention remains in force as
between them and the reserving states.180 Similarly, while CEDAW has ques177
178
179
General Recommendation 21 on Equality in Marriage and Family Relations, supra note 59 at 3.
For a list, see above at p.10.
Denmark, Finland, Germany, Mexico, the Netherlands, Norway, Portugal and Sweden. There
have also been objections to other reservations which might affect article 9.
180 Committee Chair Professor Christine Chinkin has therefore characterized these reservations as
“little more than an official record of displeasure.” C. Chinkin, “Nationality in International and
Regional Human Rights Law” (see p.2) at 15. Committee Member Dr. Alpha Connelly has stressed,
however, that the reservations have some effect since in its relations with the reserving state, the
objecting state may argue that the Women’s Convention is fully in force; that is, as though the reservation to article 9 had never been made. Should the objecting state seek to take some action against
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tioned states on their application of article 9 in the state reporting process and
has referred to states’ nonimplementation of article 9 in its concluding comments,181 there is no procedure for hearing individual complaints since the
Optional Protocol to the Women’s Convention is not yet in force.182
5.3.2) Equality and Other Rights Related to Nationality
In international human rights instruments that include a right of equality or
non-discrimination, but not specifically in the context of nationality,183 resort
may be had to the right of equality or non-discrimination, right to family life,
right to freedom of movement, right to leave a country, and right to enter one’s
own country.
In the Mauritian Women’s Case,184 a number of Mauritian women submitted
a communication to the UN Human Rights Committee, in which they argued
that amendments to the Mauritian immigration and deportation laws violated
their right to equality and right to family life under the International Covenant
on Civil and Political Rights. Up to 1977, spouses, that is, both husbands and
wives, of Mauritian citizens had the right of free access to Mauritius and
enjoyed immunity from deportation. Spouses had the right to be considered de
facto as residents of Mauritius. The amendments limited these rights to the foreign wives of Mauritian citizens. As a result, foreign husbands had to apply to
the Minister of the Interior for a residence permit and had no right to appeal to
the courts should the permit be refused.
Article 17(1) of the Covenant gave Mauritian citizens the right not to be subjected to arbitrary or unlawful interference with their family. The Committee
found that there had been interference with the family of those of the Mauritian
women who were actually, as opposed to hypothetically, affected by the
changes to the law. They and their husbands clearly constituted a “family”, a
common residence was normal for husband and wife, and the precariousness of
the husband’s residence in Mauritius amounted to interference with the family.
the reserving state in respect of the reserving state’s obligations under article 9, for instance, the
objecting state may argue that the reservation is invalid, is not opposable to it since it objected or
both.
181 For a recent example, see Concluding Observations of the Committee on the Elimination of
Discrimination Against Women: Jordan, UN Doc. CEDAW/C/2000/I/CRP.3/Add.1/Rev.1 (2000).
182 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against
Women, adopted by G.A. resolution A/54/4 on 6 October 1999, (2000) 39 I.L.M. 281, available at
<http://www.un.org/womenwatch/daw/cedaw/protocol/op.pdf>. As of April 3, 2000, 34 countries
had signed the Optional Protocol. See
<http://www.un.org/womenwatch/daw/cedaw/protocol/sigop.htm>.
183 International Covenant on Civil and Political Rights, supra note 51; African Charter on Human
and Peoples’ Rights, supra note 15; European Convention for the Protection of Human Rights and
Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221.
184 Aumeeruddy-Cziffra v. Mauritius, Communication No.35/1978, 9 April 1981, in U.N. Human
Rights Committee, Selected Decisions, vol. 1.
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These families were unsure of whether and how long they could continue their
life together in Mauritius. Moreover, the delay in processing the application for
a residence permit, a delay of several years in the case of Shirin AumeeruddyCziffra, prevented the husband from receiving a work permit and therefore from
contributing to the family income. Regardless of whether these restrictions
would otherwise have been permissible under article 17(1), they were not permissible because they discriminated on the grounds of sex. The Committee
therefore found a violation of Covenant articles 2(1) and (3), on non-discrimination and the equal rights of men and women respectively, in conjunction with
article 17(1).
The Committee similarly found a violation of these equality provisions, as
well as the provision in article 26 on equality before the law, in conjunction with
the provision in article 23(1) on the protection of the family. While the legal
protection of the family may vary from country to country and may depend on
different social, economic, political and cultural conditions and traditions, it
cannot vary with the sex of the spouse.
The greatest number of decisions bearing on nationality and citizenship
rights have been made under the European Convention on Human Rights,185
most emanating from the European Commission and a few major decisions
from the European Court of Human Rights. Since the European Convention on
Human Rights does not include an explicit right to nationality,186 the decisions
have involved immigration and the right to family life.187 Of the different rights
to family life in the European Convention, the right of men and women of marriageable age to marry and found a family, contained in article 12, is unlikely to
provide a basis for any type of immigration case. According to Storey, “its interpretation has been dominated by an ‘elsewhere’ approach which assumes no
Article 12 infringement can occur so long as an applicant is not prevented from
marrying (or adopting, etc.) abroad.”188
The right to respect for family life in article 8 of the European Convention in
conjunction with the right of non-discrimination on grounds of sex in article 14
was successfully argued in the case of Abdulaziz, Cabales and Balkandali v.
United Kingdom,189 the most important decision concerning immigration law
185
186
European Convention on Human Rights, supra note 183.
Protocol No.4 to the European Convention on Human Rights, supra note 51 does, however,
stipulate some related rights. In 1988, the Committee of Experts examined the question of inserting such a right into the European Convention, but the idea did not come to fruition. Information
Sheet No. 22 at 54.
187 See, e.g., A.M. Connelly, “Problems of Interpretation in Article 8 of the European Convention
on Human Rights” (1986) 35 Int’l & Comp. L. Q. 567; J. Liddy, “Current Topic: The Concept of
Family Life Under the ECHR” [1998] Eur. Hum. Rts L. Rev. 15; H. Storey, “The Right To Family
Life and Immigration Case Law at Strasbourg” (1990) 39 Int’l & Comp. L.Q. 328; C. Warbrick,
“The Structure of Article 8” [1998] Eur. Hum. Rts L. Rev. 32.
188 Storey, supra note 187 at 342.
189 Abdulaziz, Cabales and Balkandali v. United Kingdom, 94 Eur. Ct. H.R. (Ser.A) (1985), 81
I.L.R. 139.
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and the right to family union handed down by the Strasbourg Court. In
Abdulaziz, Cabales and Balkandali, three women - one either stateless or a
Malawi citizen, one a Filipino citizen and one a citizen of the United Kingdom
and Colonies - challenged the 1980 United Kingdom Immigration Rules on the
grounds of sex discrimination190 and interference with family life. These Rules,
which restricted who could join a spouse or intended spouse already settled in
the United Kingdom, made it more difficult for a husband or fiancé to come to
the United Kingdom than for a wife or fiancée. The United Kingdom conceded
that the Immigration Rules discriminated on the ground of sex, but justified the
decision as necessary to protect the domestic labour market in a time of high
unemployment.191 The Court rejected this justification, finding that the
prospective difference in impact on the labour market between male and female
immigrants was insufficient to justify discriminatory treatment on the basis of
190
Other grounds, including racial discrimination and inhuman and degrading treatment, were also
argued.
191 Cf. Singapore’s general reservation to the Women’s Convention:
Singapore is geographically one of the smallest independent countries in the world and one of
the most densely populated. The Republic of Singapore accordingly reserves the right to apply
such laws and conditions governing the entry into, stay in, employment of and departure from
its territory of those who do not have the right under the laws of Singapore to enter and remain
indefinitely in Singapore and to the conferment, acquisitions and loss of citizenship of women
who have acquired such citizenship by marriage and of children born outside Singapore.
In upholding the constitutionality of a provision of the 1956 Irish Nationality and Citizenship Act
that entitled the foreign wife of an Irish citizen to obtain citizenship if she lodged a declaration
accepting Irish citizenship as her post-nuptial citizenship, but allowed the foreign husband of an
Irish citizen to obtain Irish citizenship only by naturalization, which is at the discretion of the
Minister of Justice, the High Court held that the provision had
regard to the social, economic and political conditions which might prevail in the various jurisdictions from which alien aspirants for citizenship might come. It was open to the Legislature
to take the view that, in some at least of these jurisdictions, the likelihood of females being
engaged on any of the activities which might be relevant in considering an application for citizenship was sufficiently remote to justify the automatic granting of citizenship to female aliens
upon their marriage to Irish citizens.
Mohammed Ali Somjee and Margaret Somjee v. The Minister for Justice and The Attorney General,
[1981] Irish Law Reports Monthly 324 at 326.
Although the Court did not specify what activities it had in mind, it sought, like the United
Kingdom and Singapore, to justify the preferential treatment of foreign wives on the basis of
assumptions about the different activities of men and women. Several years after this decision,
however, the law was changed to make the conditions for the naturalization of foreign spouses the
same, irrespective of the sex of the spouse. In 1986, after this change became law, Ireland accordingly withdrew its reservation to article 9 of the Women’s Convention. See A. Connelly, ed., Gender
and the Law in Ireland (Dublin: Oak Tree Press, 1993) at 7-8.
Another justification used by states for discrimination in citizenship laws regarding foreign husbands of nationals is the prevention of “marriages of convenience”. See CEDAW Report
(Thirteenth Session), supra note 124 at para.331 (Zambia) and para.695 (Senegal). However, even
assuming that marriages of convenience always involve women marrying foreign men - an assumption that is highly questionable - it would be overbroad to target all women marrying foreign men
rather than to take measures aimed specifically at marriage fraud.
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sex. The United Kingdom also argued that immigration control was not subject
to the rights in the European Convention; only the Fourth Protocol to the
European Convention applied to immigration control, and the United Kingdom
was not a party to the Fourth Protocol. The Court responded that because the
advancement of the equality of the sexes was a major goal for the Council of
Europe, differentiation on the grounds of sex would only be compatible with the
aims of the Convention if very weighty reasons were advanced. The essence of
the Court’s response was that although certain areas such as nationality and
immigration were outside the scope of the Convention, the legislation which
controlled these areas must be compatible with the aims and purposes of the
Convention itself. The response of the British government is instructive. In
1985, after the European Commission had found that there was a case for the
British government to answer, the government equalized the immigration rules
downward.192 That is, rather than making it equally easy for husbands and
fiancés to come to the United Kingdom, these changes made it equally hard for
wives and fiancées to come.
A woman’s right to freedom of movement may also be violated by discriminatory nationality laws. In Unity Dow,193 the Botswana Court of Appeal found
that the law that allowed a Botswana father, but not a Botswana mother, to convey Botswana nationality to the children of the marriage infringed a mother’s
right to freedom of movement. Because children of a Botswana mother and a
non-Botswana father are aliens in Botswana, they could be denied re-entry into
or residence in Botswana. Given the nature of the relationship between mother
and child, the state’s discretion to exclude such children from Botswana
amounts to interference with the mother’s right to freedom of movement. A similar analysis of the relationship between mother and child is implicit in the High
Court of Zambia’s decision in Nawakwi194 and informs the Supreme Court of
Zimbabwe’s decisions in Rattigan, Salem and Kohlhaas with respect to the relationship between wife and husband.195
5.4) Children’s Rights
The current momentum behind children’s rights in international law suggests
that they may be an effective way to approach the second generation equality
issue of a woman’s right to pass her nationality to her child and possibly also
certain third generation equality issues. As with any strategy not centered on the
advancement of women’s equality, however, the risk is that effectiveness will
come at the cost of subordinating women’s interests to children’s interests.
192
T. Mullen, “Nationality and Immigration” in S. McLean & N. Burrows, eds., The Legal
Relevance of Gender: Some Aspects of Sex-Based Discrimination (Atlantic Highlands, N.J.:
Humanities Press International, 1988) 146 at 159-160.
193 Unity Dow, supra note 12.
194 Nawakwi, supra note 18.
195 Rattigan, supra note 17; Salem, supra note 18; Kohlhaas, supra note 19.
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As early as the 1930 Protocol Relating to a Certain Case of Statelessness,196
the prevention of statelessness among children served as a reason to give the
mother’s nationality to the child where the child would otherwise be stateless.
Since then, a number of international human rights instruments have recognized
the child’s right to acquire a nationality. The right is found in the International
Covenant on Civil and Political Rights,197 as well as in the newer, specialized
conventions such as the Children’s Convention198 and the African Charter on
the Rights and Welfare of a Child.199
This growing recognition of the child’s right to acquire a nationality does
not, by itself, amount to the recognition of the mother’s equal right to pass her
nationality to the child. The UN Human Rights Committee has identified the
purpose of the child’s right to acquire a nationality contained in the
International Covenant on Civil and Political Rights as “to prevent a child from
being afforded less protection by society and the State because he is stateless.”200 As such, the child’s right to acquire a nationality would be satisfied by
any nationality. Nothing in the right would prohibit a state from ordinarily tracing the child’s nationality through the father.
Savitri Goonesekere argues, however, that, at least as far as the Children’s
Convention is concerned, the child’s right to acquire a nationality may not be
realized by tracing nationality through the father alone. In Goonesekere’s view,
the Children’s Convention’s general articles on gender equality, family and
parental rights and responsibilities, and its norm of the best interests of the child
require that if the child’s nationality is traced through the parents (jus sanguinis), then it must be traced equally through both parents.201
Similarly, the Supreme Court of Canada in Benner202 ruled unanimously that
provisions of the Canadian Citizenship Act which treated individuals claiming
citizenship on the basis of their mother’s Canadian citizenship differently from
individuals whose claim was based on their father’s Canadian citizenship vio196
197
198
199
Protocol Relating to a Certain Case of Statelessness, supra note 144.
International Covenant on Civil and Political Rights, supra note 51 at art. 24(3).
Children’s Convention, supra note 113 at art. 7(1).
African Charter on the Rights and Welfare of a Child, supra note 139 at art.6(3). There is also
a European Convention on the Exercise of Children’s Rights, 25 January 1996, E.T.S. No.160, the
object of which is
in the best interests of children, to promote their rights, to grant them procedural rights and to
facilitate the exercise of these rights by ensuring that children are, themselves or rhrough other
persons or bodies, informed and allowed to participate in proceedings affecting them before a
juducial authority.
Ibid. at art.1(2).
200 UN Human Rights Committee, General Comment 17, Article 24 (35th session, 1989),
Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 23 (1994) at para.8.
201 Goonesekere, supra note 16 at 89-90. The child’s right to a nationality may also be read in light
of the Women’s Convention.
202 Benner, supra note 21.
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lated their equality rights as guaranteed by the Canadian constitution. The first
Citizenship Act, passed in 1947, enabled Canadian fathers to pass Canadian citizenship to their children born abroad. Except in the case of a child born out of
wedlock,203 Canadian mothers did not have the same ability. A new Citizenship
Act, which came into force in 1977, removed this distinction for children born
outside Canada after the Act came into force, making them Canadian citizens if
either parent was Canadian. For children born abroad earlier, however, the new
Act lessened, but did not entirely remove, the distinction made by the earlier
Act. Children born to a Canadian father retained their automatic entitlement to
citizenship upon registration, while children born to a Canadian mother could
now apply to become citizens. But whereas children of a Canadian father could
claim citizenship simply by registering within a certain time, children of a
Canadian mother were required to apply and, as part of the application process,
to undergo security and criminal record checks and to swear an oath.204 If the
checks showed that they had been charged with an offence, then the Act prevented them from taking the oath, and therefore from becoming Canadian citizens, until the charges were resolved. If convicted of an indictable offence, they
could not become Canadian citizens for three years after the conviction. Certain
convictions might bar them from ever becoming Canadian citizens.205
The particular relevance of Benner is the Supreme Court’s recognition that a
child may have standing to bring an equality challenge to nationality laws. In
this respect, Benner differs from, for example, the U.S. case of Miller v.
Albright.206 Benner was born in 1962 in the United States to a Canadian mother and American father. The Canadian government argued that he lacked standing because any discrimination imposed by the Citizenship Act was not imposed
on him, but on his mother. The Act did not discriminate against him based on
his sex - the Act does not refer to the sex of the applicant for citizenship - but
against his mother based on her sex. The Supreme Court rejected this argument,
finding that there was a connection between Benner’s rights and the Act’s distinction between men and women. Under the Act, Benner’s right to citizenship
depended on whether his Canadian parent was male or female. Therefore, he
was the real target of the provisions and the one with the greatest interest in
203
For the sake of brevity, the following account of Benner will refer simply to Canadian fathers
and Canadian mothers, as opposed to Canadian fathers and unmarried Canadian mothers, on the
one hand, and married Canadian mothers, on the other.
204 Benner, supra note 21 at 377-380.
205 Ibid. at 394.
206 In Miller, Justice O’Connor, joined by Justice Kennedy, found that the non-American daughter
of an American father had no standing to challenge the differential treatment of American fathers
and American mothers under U.S. citizenship legislation and, in any event, the daughter would not
have had a challenge based on gender discrimination. Miller, supra note 22 at 1442-1446. Another
problem that non-nationals (whether spouses or children of nationals) may encounter in bringing a
challenge is that the rights guaranteed by the constitution do not apply to them as non-nationals.
See Kohlhaas, supra note 19.
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challenging their constitutionality. In addition, given the unique link between
parent and child, it was appropriate to thus extend the standing to raise discrimination on grounds of sex. Where “something so intimately connected to
and so completely beyond the control of an applicant as the gender of his or her
Canadian parent” can restrict access to benefits such as citizenship, the applicant may invoke the constitutional guarantee of equality.207
Children’s rights offer an alternative approach not only to the second generation equality issue of a woman’s right to pass nationality to her child, but also
to emerging third generation equality issues. The root of these third generation
issues is the possibility that the independent nationality of women has left the
unity of the family less legally secure because the family is no longer protected
by a common nationality. In the example given earlier,208 where the husband is
a national of the state where the family lives and the wife is not, the family lacks
the security and the wife herself lacks the entitlements and benefits which that
state bases on nationality. Depending on the rights extended to non-nationals by
that state, the only viable option may be for the wife to become a national by
naturalisation. If the state does not permit dual nationality, however, then her
naturalisation amounts to the forced renunciation of her own nationality. As a
result, the unity of the family and the wife’s capacity to function in the state
where the family lives come at the expense of her nationality.
On these facts, the approach of the European Convention on Nationality is, as
already seen,209 to facilitate the wife’s naturalization and to permit her to retain
her nationality of origin. The Children’s Convention seems to take an alternative
approach. Instead of protecting the relationship between mother and child through
dual nationality, the Children’s Convention does so through extensive familyrelated rights for non-nationals.210 The more general approach to third generation
equality issues suggested by the Children’s Convention is to reconcile women’s
independent nationality and family unity by granting to non-nationals those rights
functionally necessary to the unity of families with different nationalities.
6)
Conclusion
Based on the analysis in this report, the Committee recommends:
1. The rules of states on nationality should be based on the following principles of international law:
207
208
209
210
Ibid. at 397-401.
Section 4.3, above.
See section 5.2, above.
Children’s Convention, supra note 199 at arts. 7(1) (the right of the child to know and be cared
for by his or her parents), 8(1) (the right of the child to preserve his or her identity, including family relations), 10(2) (the right of the child whose parents reside in different states to maintain on a
regular basis personal relations and direct contacts with both parents, and, towards that end, the
right of the child and his or her parents to leave any country, including their own, and to enter their
own country), art.16(1) (the right of the child to protection from arbitrary or unlawful interference
with his or her family).
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a. the right of everyone to a nationality;
b. the avoidance of statelessness; and
c. nondiscrimination on the basis of sex.
These principles are incorporated in the European Convention on Nationality.
2. The principle of nondiscrimination on the basis of sex should require, as in
article 1 of the Convention on the Elimination of All Forms of
Discrimination Against Women, the elimination of any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise by
women, on a basis of equality of men and women, of their nationality and
the rights associated with that nationality.
3. In designating the personal relationships that form the basis for preferential
treatment under immigration and nationality rules, states should not discriminate on the grounds of sex, sexual orientation, culture, marital status or any
combination thereof.
4. As provided for in article 9(1) of the Convention on the Elimination of All
Forms of Discrimination Against Women and other international human
rights treaties, states should grant women equal rights with men to acquire,
change or retain their nationality. In particular,
a. states should ensure that neither marriage to a foreign national nor
change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon
her the nationality of her husband; and
b. the recommended prohibition in (a) on forcing upon a woman the
nationality of her husband should extend to requiring states to ensure
that any incentives for a woman to acquire the nationality of her husband
or partner do not effectively deny her right to choose her nationality.
5. In the case of a family of mixed nationality living in a state of which one or
more, but not all, of its members is a national,
a. the state in which the family is living should recognize the right of the
non-national family members to enjoy equal treatment with nationals in
relation to certain civil rights and social, economic and cultural rights,
including the right of residence and right to work; or
b. the states involved should recognize
i. the right of each spouse or partner to acquire, after a short waiting
period, the nationality of the other spouse or partner without losing
his or her own nationality; and
ii. the right of the children to acquire and keep the nationality of both
parents.
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6. Where a state facilitates the acquisition of nationality by the spouse or partner of a national, the state should ensure that the method of facilitation does
not subject the foreign spouse or partner to the risk of abuse by the national spouse or partner.
7. As provided for in article 9(2) of the Convention on the Elimination of All
Forms of Discrimination Against Women and other international human
rights treaties, states should grant women equal rights with men with
respect to the nationality of their children. In a case where a child’s parents
are of different nationalities, each parent should have the right to transmit
her or his nationality to the child, even if this would result in the child’s
holding dual nationality.
8. States should provide effective remedies for individuals who have lost or
been denied that state’s nationality due to discrimination on the basis of sex,
whether that discrimination is on the basis of the individual’s sex or as a
result of the individual’s relationship to a spouse, partner or parent.
9. States should develop and implement mechanisms for studying the effect of
the administration of their rules of nationality on women and ensuring that
nondiscrimination in the rules of nationality is not compromised by the
administration of these rules. This might involve, for example, the provision of gender-sensitivity training for those involved in the administration
of the state’s rules on nationality.
10. Women should have effective representation in all reforms to nationality
law, whether at the domestic or international level.
The analysis in the report also points to the need to pursue the study of
women’s equality in the following areas of international law, including the relationship between the treatment of women in these areas and their achievement
of equality in nationality law:
migrant workers,
refugees, and
private international law.211
Christine Chinkin, Chair
Karen Knop, Rapporteur
211 Although
the study of women’s equality in immigration law and its relationship to the achievement of women’s equality in nationality law is outside the jurisdiction of the Committee, this study
is clearly of related importance.